Filed 11/29/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Colusa)
----
THE PEOPLE, 3 Crim. C075231
Plaintiff and Respondent, (Super. Ct. No. CR53504)
v.
PAUL ROGER MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Colusa County, Jeffrey A.
Thompson, J. Affirmed.
Diane Nichols, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and
John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Paul Roger Moore of first degree murder based
exclusively on circumstantial evidence that he built and planted a victim-activated bomb
in an irrigation pump he knew the farm foreman and eventual victim, Roberto Ayala,
1
would activate. Paul insists it was his first cousin Peter who had the motive and violent
disposition to murder Roberto, a man who had claimed his father‟s and uncle‟s affection
and devotion. Paul‟s narrative of family intrigue has all the earmarks of a Shakespearean
tragedy and makes for compelling drama. Nevertheless, on the narrow legal questions
presented, we find substantial evidence to support the verdict and no abuse of discretion
in admitting evidence or denying the defense request for surrebuttal closing argument,
and therefore affirm the judgment.
ROBERTO’S DEATH AND THE MOORE FAMILY TRAGEDY
On July 16, 2011, Roberto picked up his seven-year-old son, bought him lunch,
and drove to one of the Moore brothers‟ rice fields to adjust the irrigation pump. His son
heard a loud explosion and saw his father on fire. He ran to help him, but his father was
unresponsive. He could not retrieve his father‟s cell phone because his father was on fire.
He ran for about two miles to get help.
Roberto Ayala died instantly from an explosive device that he unknowingly
detonated at chest level. His body was still burning when the firefighters arrived. There
were pieces of metal shrapnel in his chest, neck, and brain. The perforating shrapnel- or
fragment-related injuries occurred immediately before the fire-related injuries. The
forensic pathologist who performed the autopsy opined that the cause of death was
explosive shrapnel injuries and high-voltage electrocution.
But the fire and law enforcement officials who performed the initial investigation
did not know a bomb had been planted in the irrigation pump. Their investigation
focused on whether the explosion was an accident. The first responders believed
Roberto‟s truck had been moved because the broken glass was located about 11 feet away
and a piece of glass was in the rear tire tread.
Roberto‟s death occurred against the backdrop of great family disharmony and
dissension between the two principals in this deadly drama, Peter and Paul, cousins
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whose fathers were the sons of Richard and “Mimi” Moore, owners of an 1,800-acre farm
near Colusa.
Neither cousin was happy with his place within the family hierarchy. Peter insists
that on his deathbed his grandfather expressed his desire for Peter to farm the walnut
orchards. But abused and ostracized by his father Gus, whom family members called
“Grumpy,” Peter was not allowed to farm and instead spent 21 years earning a living in a
landscape business he apparently loathed at times. He had been angry and upset with the
Moore family since he was 12 years old. Peter tried to convince his grandmother Mimi
to disinherit his father, confident that his Uncle Roger would be more fair. On several
occasions, he physically threatened to harm, among others, his father, his uncle, and
Roberto Ayala. Indeed, shortly before the explosion, Roberto had injured his shoulder
and Peter declared that “[w]hen his wing is better, he‟s all mine.” He was upset that
Roberto spent Father‟s Day with Gus and that they were together all the time.
Paul is Roger‟s son. Paul appears to have suffered more quietly than his cousin.
But in a document entitled “My Life” that he stored on his computer, Paul complained
bitterly about his life growing up on the farm. He felt mistreated by everyone, including
Peter. During tomato harvest, he wrote, he drove the “shitty” tractor, but “pussy” Peter
was allowed to drive the tractor with an air-conditioned cab because otherwise Peter was
a “prick to work with.” Employees, including Roberto Ayala and Roberto‟s brother
Eduardo, were given liberties he was not, such as drinking on the job, taking farm
vehicles and equipment for personal use, and getting paid during the winter. Meanwhile,
he was treated worse than any employee, worked harder, but was never given a raise. He
wrote that his father thought he was stupid, but continually raved about Roberto‟s
intelligence. In describing his life, he pondered what he had done to be treated so poorly
by his own family.
While Peter and Paul have very different dispositions, they share similar
grievances and similar life trajectories. Clearly, they both had hoped to assume
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managerial positions on the farm. Their hopes had not materialized. They attempted
other ventures that failed—Paul in construction, Peter in starting a sod business. Both
suffered physically. Paul injured his back and had to give up construction. Peter had his
stomach removed and lost almost 50 pounds.
Most significantly, they shared their animosity toward Roberto Ayala. Roberto
had worked for the Moore brothers for 19 years. He was the farm foreman. He was
responsible for regulating the water levels on the rice fields. Clearly, over the years he
earned the trust and respect of Roger and Gus. There were disagreements where Roger
took Roberto‟s advice over that of his son or nephew. For example, Roberto traveled
with Peter to a seminar about operating a sod business, but when Peter expressed interest
in purchasing a harvester, Roberto alerted Roger, and Roger disapproved of the purchase.
Similarly, when Roberto and Paul disagreed about a design for a mud chisel, Roberto‟s
idea garnered Roger‟s blessing. Paul complained that Roberto was accorded special
privileges, such as keeping sheep and goats by the farm workshop, drinking beer while
working or after work, and driving company vehicles home. According to Peter, the
Ayala brothers agitated Paul and he remarked, “Those son-of-a-bitches, they are trying to
take over my life. I‟m going to get that F‟er.” Peter testified that Paul was severely
depressed and he was afraid he was suicidal.
These facts, in large part, form the basis for Paul‟s arguments at trial and on
appeal.
DISCUSSION
I
Peter or Paul: Substantial Evidence to Support the Verdict
There was no direct evidence of who designed, constructed, or placed the
explosive device. There were no eyewitnesses, no confessions, no admissions, and no
fingerprints or DNA evidence found on any of the parts of the explosive device found at
the scene of the murder. Defendant insists there is no substantial evidence that he
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murdered Roberto Ayala, and the weak circumstantial evidence of his guilt is insufficient
to sustain the verdict in the context of the more compelling evidence that his cousin Peter
was the perpetrator.
Defendant does not quarrel with the limited scope of appellate review of an
insufficiency claim. He acknowledges, as he must, that our task is to review the whole
record in the light most favorable to the jury verdict to determine whether it discloses
substantial evidence—evidence that is reasonable, credible, and of solid value—such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Davis (2009) 46 Cal.4th 539, 606.) We are not at liberty to reweigh evidence
or revisit credibility issues. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) If the
verdict is supported by substantial evidence, we must defer to the trier of fact; yet a
verdict cannot be sustained based on “ „suspicion alone, or on imagination, speculation,
supposition, surmise, conjecture, or guess work.‟ ” (People v. Morris (1988) 46 Cal.3d 1,
21.)
In sum, there is an abundance of circumstantial evidence that either Peter or Paul,
or perhaps Peter and Paul together, built and planted the bomb that killed Roberto Ayala.
We will review that evidence in two steps: first, we will outline the evidence of solid,
credible value the jury could have reasonably relied upon in finding Paul guilty of murder
beyond a reasonable doubt. And second, we will test the substantiality of that evidence
in light of the entire record, that is to say, in light of the compelling circumstantial
evidence that Peter, not Paul, blew up Roberto Ayala.
A. Circumstantial Evidence Against Paul
1. Opportunity and Familiarity
Paul returned to work on the farm a few years before the explosion. He took on
additional responsibilities as his back healed, and by July 2011 Roger had decided to
bring on Paul as a 50 percent partner of his half of the farm operation.
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During his apprenticeship, Paul worked alongside Roberto. In fact, after Roberto
injured his shoulder, Paul accompanied him on occasion to the irrigation pumps to adjust
water levels. In early July, Paul was asked to drive out to the rice field to turn on the
water pump without Roberto. From this evidence, the jury could reasonably infer that
because Paul was familiar with Roberto‟s routine, he could specifically target Roberto by
placing the bomb in an electrical pump panel he knew Roberto would be operating. He
was familiar, therefore, not only with Roberto‟s working routine, but also with the
operation of the pump.
2. Unique Skill Set
Paul told investigators that his electrical experience was limited to fixing an
electrical outlet and that he had no experience working on the pump control panels.
According to the testimony offered by his father, his son, and his ex-father-in-law, that
was a lie.
Paul‟s son Gunner testified that when Paul was young, he rewired the light switch
in his bedroom so he could turn off the light from his bed, but if a person did not flip the
switch in a particular way, he or she would be shocked. Later, as a father, Paul taught
Gunner how to hard-wire electronics to his car battery so he would not have to use the
cigarette lighter to power the electronics in his car. Gunner believed his dad could repair
just about anything and could “make something out of nothing.” One of Paul‟s favorite
hobbies, according to Gunner, was assembling and flying radio-controlled airplanes.
Gunner also reported that, according to his dad soon after the explosion, his
grandfather “feared that there was a booby trap in the switch” and stated that “someone
must have been a genius to be able to do that, some type of electrical genius.”
Roger attested to his son‟s aptitude for building things, albeit the examples he
cited were not electric. He testified Paul constructed a rice roller and a fertilizer aqua bar
in the farm workshop.
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Over defense objection, Paul‟s ex-father-in-law testified that Paul apologized to
him for tapping his daughter‟s telephone when they were going through a divorce, putting
some kind of recorder under her modular home so he could monitor conversations. The
wiretapping occurred in 1995 or 1996. He also testified that Paul and a friend created an
acetylene bomb by combining acetylene gas and oxygen in a balloon. The bomb
exploded, injuring Paul and his friend. That explosion occurred in about 1991.
From this evidence, the jury could reasonably infer that Paul had both the aptitude
and unique skill set needed to build the type of explosive device that killed Roberto
Ayala. To be sure, Paul had demonstrated an advanced mechanical aptitude and an
understanding of electrical currents.
3. Evidence From the Investigation
July 18: Two days after Roberto Ayala‟s death, Paul delivered to investigators a
piece of metal he found in a canal near the explosion. He pointed out that the markings
or threading on the metal indicated to him the explosion was not an accident. According
to Paul, something had been placed at the pump to cause the explosion. He told
investigators he had operated the panel five days before the explosion, and he drew an
accurate picture of the panel.
On that same day, Paul cast aspersions on Peter. The jurors could have found his
behavior odd, even calculated to focus the investigators‟ attention on his cousin. He
showed them copies of text messages he had received from Peter in which Peter
expressed his displeasure with the condition of the fields and suggested the field manager
(Roberto Ayala) should be fired. The investigators would later discover that Paul had
deleted individual text messages he had sent to and received from Peter. Paul told the
investigators that Peter had been around the explosion site one day before the explosion.
August: On August 11 the investigators were informed that the chemical testing
of the fragments from the explosion indicated the presence of nitroglycerine, a chemical
used in explosives. This information was not disclosed to the public.
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The next day, the investigators at the Colusa County Sheriff‟s Department
received a letter with a postmark from Sacramento that they learned was processed by the
postal service in West Sacramento. The delivery and return addresses were printed label
strips made with a label maker. Eight stamps were attached for postage. The text of the
letter was a photocopy of the original; it too contained printed label strips made with a
label maker. The letter read:
“I am responsible for the panel explosion. I am military trained. Expert in
Vietnam devices. I received info and instructions via USPS. Name, age, vehicle I.D. and
plate number. Location and meter number for panel. First three fuses, the device had
dual triggers and detonators. Trig one, vibration activated. Trig two, drop weight
activated upon door opening. Two-inch gallon pipe and quart of gasoline in plastic
bottle. Upon detonation gas atomized for millisecond, completed the circuit triggering
flashover, thus electrocution, fail safe and no disarming. Lab results will be military-
grade powder, black spray-painted epoxy, no DNA. This was an MS-13 [Mara
Salvatrucha, a violent gang] job, something about a Mexico deal gone wrong.
“Why am I helping u? I received another package via USPS, target two, I will not
take this job because the info I received is wrong. I got name, age, vehicle description,
plate number and location. The target is brother of target one and drives Chevy. This
vehicle info is the same as the first job. White Ford, same plate number. I finally found
the Ford, and now it is driven by some young guy, not the brother. Since I will not take
this job, it will soon be reassigned. Someone will take it. The next guy might not catch
the error in info and the wrong person will die.
“I would decline anyway because I saw target two with his girls and that I can‟t
deal with. Target two knows the Mexico connection and that is the reason 4 relocating n
will not help target two. They will find him. He needs to be careful. They gave me two
months 4 this job. It will be reassigned in five weeks. Whoever is driving the Ford is
very much in danger. This was my first and final job. I am sure MS-13 will figure out I
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tipped authorities and will soon come for me. My house and property are protected,
larger devices. I am over this life. God [sic] luck. If u come 4 me, call first. I will come
peacefully or detonate all the devices.”
Paul, not Peter, used abbreviations such as “u” and “4” in his text messages. The
investigators did not believe that a Mexican gang was involved in the explosion because
gangs typically advertise their involvement rather than hide it, to incite fear and
command respect.
On August 15 the investigators received a second letter and a diagram of a bomb.
Like the first letter, the text of the second was made with a label maker and photocopied.
This envelope had a postmark from Colusa. The letter stated:
“Ayala was actually warned what would happen if he screwed with these people.
He has endangered others in his family. They now want the white Ford F-250 hit. He
thought he was safe in the States. Previously driven by target one. They want the
brother, but it is now driven by some young guy, or do they want the young guy? This is
why I refused this job, but the next guy might kill both to ensure payment. Whoever is
driving that white F-250 is in great danger. Another expert will do this job. The money
is good. After a career of killing, I want to save a life before I take my life. If u have any
questions, place ad in Sac Bee, help wanted, make it the last ad [in the] August 21st issue.
This is the second warning letter I have sent u. I wanted to make sure u get [sic]. Believe
me and have time to do something to help these guys.”
One of the investigators described the diagram of the bomb as follows:
“It‟s a diagram that has writing around the diagram and on the diagram. The
writing is comprised in a similar fashion as the letters themselves. The actual printing on
the diagram looks like somebody printed it on a label maker, affixed it to the paper and
then ran it through a photocopier. There is also freehand drawing on the diagram, and
there‟s also straightedge drawing on the diagram.
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“The freehand drawing has some arrows on it. The straightedge drawing is -- the
diagram depicts -- what we‟re led to believe is that the diagram depicts the electrical box.
The outside square of the diagram is the electrical box that we‟ve described.”
No fingerprints were found on the two letters, and one of the envelopes contained
the fingerprints of an unknown person. Neither Peter‟s nor Paul‟s DNA matched swabs
taken from the letters, envelopes, and stamps.
On August 17 Paul went to the police station voluntarily. He denied involvement
in the explosion, declaring it was “a chicken shit way for somebody to do it.” As
mentioned earlier, he claimed he had little experience with electrical devices and no
experience with the irrigation pumps. He denied saying he would fire the Ayala brothers
if he ever took over the farm and insisted he liked Roberto. He claimed Roberto was a
good person but admitted he became upset when he saw Roberto drinking and driving on
the farm.
On August 18 Paul brought in another fragment he thought was suspicious and
indicative of a bomb going off. He thereafter refused to come back for any additional
interviews.
On August 22 the investigators searched the farm shop with Roger‟s permission.
They found threaded pipe nipple, end caps in the form of reducers and plugs, other end
caps, washers, nuts, multicolored wire, and seven-inch bolts. The bolts were just like the
bolt discovered at the scene of the explosion. The washers were consistent with washers
used on the spikes that had been laid on the road leading away from the explosion site.
September-October: On several occasions the FBI dive team searched the canal
and the irrigation ditch perpendicular to the canal and found a fuse, hinge, washers and
nuts, the inside part of the electrical control panel, part of the post the panel had been
mounted on, and a timer box cover. On October 3 investigators also found spikes down a
private farm road. Eduardo Ayala told an investigator he saw Paul manufacturing spikes
in the farm maintenance shop.
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November: By November the investigation had targeted Paul. The investigators
placed a GPS (global positioning system) device on his truck, devices that often
malfunction. On November 24 they noticed the device was not working and they went to
Paul‟s house to investigate. The investigators did not desire to have personal contact
with Paul at the time, so when he saw them driving by his house, the investigators drove
away from the area. As they were driving, they noticed Paul‟s truck behind them. Paul
then drove to the farm shop. The investigators drove around the block a couple of times
and on one occasion had eye contact with Paul. They observed his vehicle leave the shop
and the driver accelerated and eventually passed them at over 90 miles per hour. The
prosecution argued that Paul was attempting to taunt the police.
December: On December 6 Paul‟s house was searched. A bomb-sniffing dog did
not alert on anything explosive in the house, garage, or truck. The police officers
confiscated a laptop computer, a combined printer-copier, a partial roll of stamps similar
to those used on the second letter sent to the sheriff, an unopened label maker, file folders
that had been marked with labels created with a label maker, and manila envelopes
similar to the one used for the first letter. Most damning, they found a sheet of paper
with indentations that appeared to match the diagram of the bomb sent to the sheriff.
They seized this sheet but not the sheets of paper below it. They also found a rat trap and
three mouse traps in the pantry and fishing line in his boat. A trace evidence examiner
testified that the chemical composition of the fishing line found in Paul‟s boat was
indistinguishable from the fishing line wrapped around a bolt found at the scene of the
explosion.
Paul was eventually arrested for the murder of Roberto Ayala. A friend read about
his fingerprints on the indented sheet in a local newspaper and asked him about it when
he called Paul in jail. Paul said the evidence was no big deal; he said the sheet was found
in his house by the window, and he “probably leaned on it and opened the window.”
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Forensic Analysis
The forensic testimony provided the most compelling evidence against Paul. The
prosecution called a litany of forensic experts connecting Paul to the sheet of paper with
the indentations of the bomb diagram, the paper in the printer to the paper used in the
diagram of the bomb, the ink in the copier to the ink used on the second letter and the
diagram, the type of labels used in the letters and diagram to the type Paul used on his
own files, and the fishing line found in his boat to the type of fishing line used in the
bomb. Taken together, their expert opinions constitute substantial evidence from which
the jurors could reasonably infer that Paul was the author of the incriminating letters to
the investigators and that it was the author of those letters with the knowledge of the
intricacies of the bomb who must have designed, created, and planted it.
A forensic document examiner compared the sheet of paper with the indentations
that had been seized from Paul‟s residence to the diagram of the bomb mailed to the
Colusa County Sheriff‟s Department. Most of the indented impressions found on the
sheet of paper matched the lines in the bomb diagram. He explained that the indented
sheet appeared to have been placed beneath the document that was actually written even
though some of the lines did not align perfectly. The lack of complete alignment resulted
from the diagram or indented sheet being moved, the diagram being drawn at different
times, or a line being overwritten. He noted that in a stack of paper, indentations can
appear five pages down.
Eight fingerprints and the left palm print lifted from the indented sheet of paper
matched Paul‟s.
A document examiner from the United States Secret Service compared the ink
from the documents sent to the sheriff‟s department with the ink on documents from the
printer confiscated at Paul‟s house. He opined that the second letter and bomb diagram
had the same physical, optical, and chemical profiles. In short, he could not tell them
12
apart. He also noted that the second letter, bomb diagram, and indented sheet of paper
had comparable levels of sodium, sulfur, and chlorine.
A trace evidence examiner found the fishing line recovered from Paul‟s boat had
the same chemical composition as the line around the bolt found at the site of the
explosion. She concluded that all the samples came from the same spool or another spool
having the same chemical composition and physical characteristics. She also testified the
labels on the envelopes sent to the sheriff were consistent with those on Paul‟s file
folders, with the same type of polyester backing and the same type of acrylic-based
adhesive. In her opinion, the labels came from the same tape cassette or from another
one with the same characteristics.
An explosive enforcement officer testified that booby trap devices are “victim-
operated.” He explained that just above the pipe bomb was a “mouse-trap assembly” that
was used as a trigger. He described how the booby trap would detonate, as follows:
“So imagine you take a metal box, typical control panel, electrical, that has the lip
that goes around, and you have that little washer pin in there so that the lip of the box, I
imagine, the door to the box and the box itself has this little washer sandwiched in
between them so that it can‟t fall down. It‟s leveraged in between there.
“As soon as that door starts to open, that washer is free. Once it gets free enough
to the point, and that won‟t take a whole lot, that washer drops or is free, and then that
bolt drops, pulls the line through the first nut on the top, pulls the nut or the line through
the bottom nut over here, the second one, which yanks on this little trigger right there
releasing the bale. And this would be, in my explanation, it takes a little bit of time, but
this is near instantaneously. It‟s a very rapid event. [¶] . . . [¶]
“. . . The bale strikes the nail, and the nail strikes the primer, and this is all
happening immediately. And that primer is causing an immediate flash into the cavity of
that pipe assembly, the pipe bomb itself, and initiates the explosive charge. The bomb is
set off.”
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The bomb also contained a plastic container filled with gasoline to ignite during
the explosion and enhance the thermal effect. Thus the victim, according to the explosive
expert, would be injured simultaneously by the explosion and the fire. And because the
explosion would be instantaneous, the victim would still be in contact with the electrical
panel and would be electrocuted.
In the explosive expert‟s opinion, the evidence collected from the scene of the
explosion was consistent with the diagram of the bomb, including a bolt with the piece of
fishing line, pieces of a sprayed-black plastic bottle, plastic wrap, and washers and bolts
that might have been part of the bomb. Whoever drew the diagram, he believed, was
“intimately familiar with the construction of that device.”
The forensic evidence, including the indented sheet of paper with Paul‟s
fingerprints on it, the ink and paper from his printer matching the ink and paper mailed to
the sheriff, the matching fishing lines, and the presence in the farm shop of many of the
materials needed to make the bomb, constitutes substantial evidence to support the
inference the jury made that it was Paul who wrote the letters to the sheriff, and it was
therefore Paul who planted the bomb that blew up Roberto Ayala, just as he had planned.
4. Motive
The prosecution need not, as we know, prove motive. (CALCRIM No. 370;
People v. Hillhouse (2002) 27 Cal.4th 469, 503-504.) Nevertheless, motive is relevant,
and a strong motive provides powerful evidence. (People v. Vereneseneckockockhoff
(1900) 129 Cal. 497, 508.) Here the prosecution sought to prove that Paul disliked
Roberto Ayala, believed he was a liability to the farm, and thought that his removal
would allow Paul to assume greater managerial responsibilities. There is indeed
sufficient evidence to support a reasonable inference that Paul had nursed a lifetime
animosity toward nonfamily members his father appeared to favor. And Roberto Ayala,
in particular, was the target of his wrath.
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We have completed one-half of our job by presenting the circumstantial evidence
from which the jurors could have reasonably inferred that Paul had the familiarity with
Roberto Ayala‟s work routine and how to operate the irrigation pump as well as the
opportunity to plant the bomb and the unique skill set in electrical and mechanical design
to have constructed the victim-activated explosive device that killed him. We have
outlined the chronology of the investigation and how it produced evidence that Paul was
quick to alert the investigators to evidence suggesting that Peter bore Roberto ill will, that
Peter had threatened Roberto, that Peter had been at the scene of the explosion the day
before it happened, and that it was an explosion, not an accident. The forensic evidence,
as we have described it, connects Paul to the drafting of the second letter and bomb
diagram sent to the sheriff‟s department. The indented sheet had his fingerprints all over
it, the paper matched paper from his house, the ink matched ink in the printer from his
house, the labels matched his labels, and the fishing line attached to the bolt matched
fishing line from his boat. The jury reasonably could have concluded that his conduct
following the explosion was incriminatory—manufacturing spikes that were found in the
road and taunting the police in a dramatic chase. And while it may be doubtful that Paul
killed the farm‟s foreman to accelerate his own position given that his father had already
decided to partner with him, he certainly felt aggrieved and humiliated that he had been
denied the opportunity to become the foreman when he graduated from high school and
that, throughout his life, those employees like Roberto Ayala who were not part of the
Moore family were valued more and treated better than either Peter or Paul.
Having reviewed the evidence offered by the prosecution, we now turn to the
evidence presented by the defense that Peter, not Paul, planted the bomb that killed
Roberto Ayala, for he too appeared to disdain the man, he too had the opportunity and
familiarity with the irrigation pump, he too had access to the area in which the bomb was
planted, and he too had incriminating evidence on his computer hard drive. In addition,
he had a violent disposition and leveled threats to harm not only Roberto, but his father,
15
his uncle, and many others who upset him. His reputation in the community would make
Peter the more likely suspect than Paul.
B. Circumstantial Evidence Against Peter
1. Violent Disposition
There is an abundance of evidence to support the notion that Peter has been a bully
his entire life and his relationships ended poorly. When asked if his temper had caused
problems for him in the community, he testified, “I‟m not the easiest guy to get along
with.” By his own account, his father not only physically abused him, but from the time
he was eight or nine years old made him fight with other boys to resolve their conflicts.
He was a boxer in high school. As an adult, he became a football coach but was fired for
his aggressiveness toward a student. He was fired as the director of a duck club because
he offended some of the members. And, of course, he was ostracized from the farm and
estranged from his father. He remained so bitter toward his father he begged his
grandmother to disinherit him. The day before the bombing, Peter wrote that an old
friend, Bea, had told him she hated his father and “[s]o I think the world of Bea.”
According to Consuelo Conedy-Ruiz, the wife of one of the farm workers, Peter
intentionally ran over her dog and drove away. He never apologized, and her husband,
Antonio Ruiz, demanded that she not confront him. Peter told Ruiz and Conedy-Ruiz he
did not like Roberto, he was practicing karate to prepare him to fight Roberto, and he
referred to Roberto as a “son of a bitch.” In either June or July of 2012 Peter told Ruiz
and his wife to forget everything he had told them a year earlier.
Peter loved to shoot ducks. Many years before the explosion, he set up two duck
blinds in a field on the farm. After a few years, Martin Tucker told Roger that Peter and
his friends were shooting every bird in the sky. As a result, Roger had the duck blinds
removed. Peter was so angry he left a voice mail message for Tucker, threatening that he
“was going to rip his head off and piss down his throat” or “shit down [his] neck.” Peter
16
testified that he did not intend to literally rip off Tucker‟s head, but he did want to engage
in a fistfight. Tucker reported the incident to the sheriff and to Roger.
Peter threatened both his uncle and his father. He threatened to “beat [his] dad‟s
ass” on multiple occasions. He also threatened his Uncle Roger, despite the fact he
believed Roger would be more fair to him than his father. Roger made two police reports
based on Peter‟s threats to physically assault him.
Eduardo Ayala testified that he knew Peter characterized him and his coworkers as
a lazy group of drug addicts and alcoholics who would ruin the Moore brothers‟
agricultural business. He assumed Peter was trying to get him fired.
Most significantly, Peter broadcast his contempt for Roberto. A month before the
explosion, Roger learned from Paul that Peter threatened to injure Roberto. Peter texted,
“When [Roberto‟s] wing is better, he‟s all mine.” Peter testified that when he wrote the
message he was planning to beat up Roberto. Roger encouraged Roberto to seek a
restraining order against Peter, but Roberto declined. Peter testified he was going to
physically beat up Roberto.
Peter testified that two months before the explosion, his father told Roberto that if
Peter came on the farm, Roberto should have him arrested for trespassing. He also
testified that Paul had told him that Roberto had said he was only good for picking up
trash and that Roberto would be receiving Peter‟s inheritance. He explained that he had
posted a message entitled “Horrible Tragedy” on a sports gambling Web site wherein he
described the death of Roberto Ayala.
Peter‟s best friend, Blane Martin, countered this narrative. Instead, he agreed that
the saying, “Don‟t let your bulldog mouth let your mockingbird ass get in trouble”
applied to Peter. In other words, Martin believed Peter‟s “bark is much bigger than his
bite.” Martin had never seen Peter actually engage in any sort of violence.
17
2. Forensic Evidence
Peter‟s house was searched a few days after the explosion. He thought the police
were there to search for medical marijuana he was growing. The investigators took
possession of three computers and three cellular telephones. Prosecution experts did not
find any evidence of value on Peter‟s devices.
During trial, however, the defense offered the testimony of an expert in forensic
computer analysis. He discovered what the prosecution experts had all missed—that the
user of Peter‟s computer had visited a YouTube rat trap video.
Roberto‟s seven-year-old son told the investigators and testified at the preliminary
hearing that he did not move or drive the truck after the bomb exploded. For the first
time at trial, however, he testified he got into the truck and tried to drive it. The defense
argued that Peter had been present at the scene of the explosion.
3. Voice Mail Messages
On July 17 Roger gave the investigators two voice mail messages he had received
from Peter. In the first message, Peter told Roger that the real reason Roberto‟s son was
fired by another employer was that he was caught stealing and forging his time card, the
same thing the “Ayala boys” had been doing to Roger for years. In the second message,
Peter said he had worked for 21 years so he could have a chance to farm; that he wanted
his grandfather‟s farm to stay in the family, but his father had disinherited him; that he
and Roger were now “screwed” and he was not going to get a chance to farm; that he had
never had a father except biologically; that his father was a “douchebag” and had never
given him a penny; that Roger could not see the “Ayala boys over there ripping [him] off
blind”; and that Roberto had his kid driving the harvester.
4. Aptitude
Peter had difficulty with reading comprehension. At trial he explained he had
difficulty understanding the documents he was asked to review, but that he could
understand an oral description of their contents. Martin opined that Peter was not
18
technically, with regard to electricity, or mechanically talented at all; rather, he was
forgetful, had difficulty maintaining the tools he needed for his landscaping business, and
suffered minor coordination problems. For example, Peter‟s hands shook as he tried to
connect PVC (polyvinyl chloride) pipes and install sprinkler systems. He was able,
however, to install electrical sprinkler systems. Peter testified he was not a trained
welder, he was not talented when it came to anything mechanical, and the only electrical
work he performed was the simple wiring of electrical sprinkler systems.
5. Familiarity and Opportunity
Peter was intimately familiar with the field where Roberto was blown up. In fact,
he testified “[t]hat piece of property is my favorite piece of property that we own.” It was
in that field that he ran his duck club before Roger took down the blinds. He dropped his
clippings from his landscape business 40 yards from the pump. And he drove his ATV
over the field with his friend Blane Martin on a regular basis. Although he had used the
irrigation pump years earlier when he was shooting ducks, the mechanism had been
changed and he testified he did not know how to use the new apparatus.
Peter testified it had been 20 days since he had been at the location where the
bomb had gone off. There is no direct evidence that Peter knew Roberto‟s precise work
schedule or routine, but a jury could reasonably infer that he understood that a foreman‟s
responsibility included adjusting the water levels on the rice fields. Moreover, he was
aware of the 19 years Roberto had dedicated to the Moore brothers‟ farm and had
watched at a distance as Roberto ascended to the position he coveted.
6. Motive
Motive is one of the elements the defense argued most vehemently. In Paul‟s
view, it was Peter who had lost the most and had the most to gain by Roberto‟s demise.
By July 2011 Paul had been reintegrated into the farm and had been promised a
partnership with his father. Roberto was not an impediment to his ambitions. But Peter‟s
situation was far different. He had not been allowed to work on the farm for over 21
19
years. Gus stood ready to arrest him for trespassing if he was found on the premises. He
did not like Roger and Roger did not like him. While there is no evidence that he
actually had been disinherited, Peter believed he had and that Roberto would be the
recipient of his share of the farm. On July 12, 2011, Peter had texted Paul that he had
been landscaping for 21 years, needed to get out, wanted to farm, was trying to get people
to talk to Roger, and hoped that Paul would talk to Roger to help him get started farming.
Paul therefore argued that he had no motive to kill Roberto, whereas Peter did. Roberto
was Peter‟s nemesis, and it was Peter, not Paul, who stood to gain the most once he was
removed.
C. Analysis
Based on Peter‟s violent disposition and the threats he leveled at Roberto, among
others, the rat trap YouTube video found on his computer, his basic understanding of
electrical devices sufficient to enable him to install electric sprinkler systems, his
familiarity with the field and with Roberto‟s responsibilities, his opportunity to plant the
bomb, and his compelling motive to remove him from the farm, Paul argued that Peter
planted the bomb that Roberto activated when he opened the electrical box to adjust the
water levels on the rice field. He insisted that Peter planted the indented paper and that
his fingerprints were left on the top sheet when he placed his hand on it to adjust a
window shade. He stressed that Peter‟s history of acting out with physical force, coupled
with his hatred for Roberto and his lifelong ambition to work his grandfather‟s farm,
constitutes overwhelming evidence that Peter was the murderer. More to the point, he
contends the evidence we described above is not substantial when reviewed in the context
of the entire record. That evidence, Paul argued, pointed to Peter‟s guilt beyond a
reasonable doubt.
Paul was well represented at trial, and his lawyer effectively lodged these
arguments, and many more, to the jurors. The case is a classic whodunit. And it is
particularly challenging because, as Paul argues on appeal, there are no witnesses, no
20
fingerprints on any of the bomb parts, no DNA, no confessions, and no admissions. The
evidence is all circumstantial. But it is the jury‟s prerogative, not ours, to weigh the
evidence. The jurors had the opportunity to observe Paul throughout the trial and to
assess Peter‟s credibility throughout his lengthy direct and cross-examinations. But
apparently they had little difficulty reaching their verdict. They asked for the testimony
of only one witness to be reread to them. Although the trial was lengthy, they took less
than a day to deliberate. Our sole duty, as we wrote at the outset, is only to insure that
there is substantial evidence to support the verdict this jury reached.
We have carefully evaluated the quantum and sufficiency of the evidence that it
was Paul who murdered Roberto in the context of the whole record, and we have
examined each of the pieces of evidence he contends proves that it was Peter who
designed, built, and planted the victim-activated explosive device. The defense raised
important questions and offered a more than plausible alternative theory, but those
questions were answered by the jury and it rejected Paul‟s argument that Peter was the
perpetrator. We simply cannot say the evidence that Paul possessed the unique skill set
to build a bomb, that he had the requisite familiarity with Roberto‟s schedule and with the
irrigation pump where the bomb was planted, of his fingerprints on the indented sheet
that matched the bomb diagram and the remainder of the forensic evidence connecting
his printer and his labels with the letter and diagram sent by the bomber to the sheriff, and
of his suspicious behavior in framing his cousin and in manufacturing and planting the
spikes in the road and chasing the investigators at high speeds, and his personal account
of the lifetime of disappointment he felt in the way he had been treated relative to the
way his father and uncle doted on Roberto, does not constitute solid evidence of credible
and reasonable value to sustain the verdict. Simply put, the jury concluded beyond a
reasonable doubt that based on this evidence, Paul was guilty of first degree murder. We
must accept its determination.
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II
Admissibility of Evidence
Prior Bad Acts
Paul argues the trial court abused its discretion by admitting evidence he had
wiretapped his ex-wife‟s telephone during divorce proceedings 15 years earlier and had
made oxygen acetylene bombs 20 years earlier. He contends the evidence was too
remote, was not probative of his knowledge of electrical circuitry or constructing
sophisticated bombs, and was substantially more prejudicial than probative. In his view,
the admission of such prejudicial evidence rendered the state proceedings fundamentally
unfair and violated his right to a fair trial under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.
Again, the limited scope of appellate review presents an insurmountable obstacle.
Paul concedes that the standard of review is an abuse of discretion, but he cautions us not
to rely on the colorful descriptions and derisive boilerplates the Attorney General uses to
describe abuse of discretion, including such catchphrases as a court abuses its discretion
when the ruling is “arbitrary, capricious, or patently absurd,” resulting in a “manifest
miscarriage of justice.” Rather, he insists the ultimate question is whether the court‟s
ruling was unreasonable in light of the governing law and the facts presented. (People v.
Jacobs (2007) 156 Cal.App.4th 728, 737-738.) Without debating semantics, the point is
that we must defer to the trial court‟s determination whether the evidence is substantially
more prejudicial than probative unless the court has strayed too far from what is
reasonable and sound. Evidence Code section 352 provides the framework: “The court
in its discretion may exclude evidence if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.” In other words, the trial court is accorded considerable discretion to carefully
balance the competing interests in admitting probative evidence and in excluding
22
evidence that unfairly prejudices a defendant, and an appellate court will overturn the
exercise of discretion only when the trial court‟s assessment appears to exceed the
bounds of reason. (People v. Johnson (2000) 77 Cal.App.4th 410, 417-419.)
Admission of character evidence, however, is subject to special rules. Our
criminal justice system is predicated on the fundamental notion that a person accused of
criminal conduct must be convicted based on evidence that he or she committed the
alleged conduct and not merely based on evidence of a criminal disposition or a criminal
reputation. (People v. Hendrix (2013) 214 Cal.App.4th 216, 238.) The Legislature
therefore has declared that “evidence of a person‟s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).)
Nevertheless, the Legislature also recognized that some otherwise inadmissible
character evidence should be considered by a jury because it is relevant to prove identity,
intent, or knowledge. In those instances, a defendant‟s prior bad acts are admissible.
(Evid. Code, § 1101, subd. (b).) The admissibility of uncharged acts “ „depends upon
three principal factors: (1) the materiality of the fact sought to be proved or disproved;
(2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the
existence of any rule or policy requiring the exclusion of relevant evidence.‟ [Citation.]”
(People v. Robbins (1988) 45 Cal.3d 867, 879; see People v. Kelly (2007) 42 Cal.4th 763,
783.) Whether a trial court has erred in admitting evidence under Evidence Code section
1101 is also reviewed for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349,
369.)
Wiretapping: In opposition to the defense motion in limine to exclude the
evidence of wiretapping, the prosecutor argued: “Defendant climbed a telephone pole
and attached a wire to the line, running the wire to a recording device. The evidence will
show that the explosive device in this case was housed inside a 480-volt high amperage
23
pump control panel. Installing a device inside such a panel is a highly dangerous activity.
An individual would need prior knowledge of electric devices and electrical systems in
order to properly and safely install the device. The wiretapping incident indicates
knowledge of electrical circuits, as well as the ability to alter and manipulate said circuits
while maintaining personal safety. Therefore, the evidence shows a knowledge of, and
experience with, electric devices under [Evidence Code section] 1101[, subdivision] (b)
and should be admitted.”
Paul emphasizes that his ex-father-in-law offered the only evidence about the
wiretapping and his testimony was simply that Paul “put some kind of a recorder or a
similar device underneath her modular home where he could, from time to time, monitor
what the conversations were.” Paul argues, therefore, there is no evidence that installing
a wiretapping device demonstrated any particular knowledge about electrical circuitry or
working with complex electrical devices. It is speculative, according to Paul, to assume
that wiretapping a telephone is any more complicated than purchasing a “Radio Shack or
Spy Store device complete with user instructions for dummies [or] a DIY device.”
It is true that the prosecution did not elicit testimony from the ex-father-in-law or
from anyone else about what electrical knowledge was necessary to wiretap a telephone.
At trial there was no evidence Paul climbed a telephone pole to attach a wire to the line or
any other evidence as to how Paul actually wiretapped the telephone. But the degree of
sophistication it takes to wiretap is not dispositive. Whether wiretapping is relatively
simple or exceedingly complex, it takes a certain degree of knowledge to tap into
someone‟s phone line. All of these considerations could factor into the trial court‟s
delicate weighing process.
The potential prejudice of admitting the evidence was slight. Paul‟s ex-father-in-
law testified briefly, and the description he gave certainly did not consume an undue
amount of trial time. Having heard how Roberto Ayala had been burned and blown up,
24
the evidence of a simple wiretap would not have so outraged or incited the jurors as to
put them at risk of wrongfully convicting Paul because of this prior act.
There is no question, however, that the evidence was remote in time.
Nevertheless, there was probative value in establishing Paul‟s lifelong familiarity and
experimentation with all types of electrical and mechanical devices. As a child he rigged
his light switch; as a father he taught his son how to hardwire his car; as a farmer he
designed a mud chisel, rice rollers, and a fertilizer aqua bar. Beyond those innocuous
hobbies, he wiretapped a telephone and blew up a bomb. We cannot say the trial court
abused its discretion by admitting evidence of a pattern of fascination and aptitude with
building things, some requiring electrical aptitude and some that did not. Although none
of the individual incidents when taken alone would have demonstrated the type of
knowledge necessary to make and install a bomb in an electrical panel device, the jury
was entitled to hear how cumulatively they were relevant to whether Paul had the
requisite knowledge to install a victim-activated bomb.
The essence of Paul‟s argument is that the wiretap had minimal probative value
because of the lack of evidence as to the quantum of knowledge necessary to build the
bomb that killed Roberto. We agree the prosecution may have overstated the probative
value by arguing the degree of sophistication a wiretap takes in the absence of evidence
to support that claim. But that is not to say a wiretap does not have sufficient probative
value to merit admission, and given the minimal risk of potential prejudice, the trial court
did not abuse its discretion by admitting evidence that did offer some probative value into
the extent of Paul‟s knowledge about building and connecting electrical and mechanical
devices.
The Oxygen-Acetylene Bomb: Similarly, the evidence that Paul had mixed
oxygen with acetylene to produce an explosion when he was in his early to mid-twenties
also had some probative value about his knowledge, even if primitive, of bomb making.
Again, Paul‟s critique is the same: that is, the prosecutor grossly exaggerated his
25
fascination with bomb making and extrapolated one incident into a proclivity to create
multiple and more advanced explosive devices. This is an argument defense counsel had
the opportunity to effectively rebut in closing argument. And, as with the admissibility of
the wiretap evidence, the argument is simply a diminution of the probative value
suggested by the prosecution; it is not that the evidence bore no probative value, just that
it was substantially outweighed by the risk of prejudice.
The evidence demonstrates that Paul had, on at least one occasion, experimented
with explosive substances. Thus it was relevant and probative of his knowledge of
creating explosions. But the determinative question is whether the trial court abused its
discretion by finding the risk of prejudice did not substantially outweigh whatever
probative value the evidence had. The focus again, therefore, is not on just how
probative the evidence was, but rather on how grave the risk of prejudice admission of
the old incident presented.
We conclude the risk was very low. There was no undue consumption of time
since Paul‟s ex-father-in-law explained what he knew about Paul‟s involvement in
creating an explosion in a paragraph or two. Nor was there a terrible danger of
unnecessarily inciting the jurors‟ passions. Paul and his young friend were burned in the
explosion they caused, but their injuries paled by comparison to the injuries suffered by
Roberto when the bomb he activated set him on fire and electrocuted him.
Without going as far as the prosecutor in overstating the probative value,
therefore, we do conclude the risk of prejudice was so conspicuously slight that it did not
substantially outweigh the probative value the explosion-making incident had in
establishing that Paul did have some familiarity, even if rudimentary, with working with
explosives. We conclude the trial court did not abuse its discretion by calculating the
minimal risk of prejudice and finding the probative value was sufficient to justify the
admission of the evidence. We are not at liberty to second-guess the trial court‟s careful
and reasoned assessment, and because we find there is no abuse of discretion, there was
26
no error in admitting the evidence. Paul‟s trial was not fundamentally unfair, and he was
not deprived of his constitutional right to due process.
“My Life”: Paul maintains that the trial court abused its discretion by admitting
the prosecution‟s evidence of a document extracted from Paul‟s computer entitled “My
Life” because its probative value was outweighed by undue prejudice within the meaning
of Evidence Code section 352. He argues that the trial court‟s error violated his right to a
fair trial and due process of law under the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution.
Paul states repeatedly that he did not threaten Roberto Ayala in the entire
document as if the document were irrelevant simply because he did not threaten to
physically assault him. In the “My Life” document, as described above, Paul provides a
litany of perceived wounds and transgressions he suffered throughout his life on the farm
and many of the indignities he felt were a result of the privileges, trust, and respect
showered on Roberto by Roger and Gus. Paul felt belittled as Roberto assumed what
Paul believed was his own place on the farm. We agree with the trial court that the
document was therefore relevant to prove motive. Paul was free to argue that the
document itself proved he had no intention of harming Roberto because, even in his most
private moments, he did not threaten him. But the document provided strong
circumstantial evidence he secretly envied the position to which Roberto had ascended
and the discomfort Roberto‟s presence continued to cause him.
Defense counsel argued the document should have been excluded because it was
written at least 18 months before Roberto was killed and many of the events Paul
described had occurred in his early childhood. She contended it was too remote to be
sufficiently probative and too prejudicial to be admitted. We disagree. To understand if,
why, and how Paul would have blown up Roberto, the prosecution attempted to tell the
painful story of the men of the Moore family farm and their tortured relationships. Paul,
through his own words, told that story from his perspective, and his perspective provided
27
the jury invaluable insight into his motive for committing such an atrocious act. The fact
that the document described the history of the family only added to its probative value.
And we do not accept the proposition that a document that was either written or
transferred a mere year and a half before the blast was too remote in time. Paul‟s
animosity toward Roberto and his feelings of humiliation and resentment were simmering
for years, and who better to express his feelings, and inferentially his motive, to the jury
than Paul himself?
We find no merit in Paul‟s objection to the admissibility of his own life story. A
defendant‟s writings have been admitted to prove motive over defense objection.
(People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.) Because the “My Life” document
was highly probative, it is not surprising or improper that the prosecutor quoted it in the
opening of his rebuttal argument. Paul‟s voice was powerful circumstantial evidence the
prosecution had every right to exploit. Of course, the evidence was damaging, for it
confirmed the prosecution‟s basic theory of the case, that a disappointed, angry, and
envious man killed the foreman who threatened him most in his father‟s eyes. The
admission of the evidence was not only fair but essential in assuring the jury understood
the depth of how aggrieved Paul felt and that Roberto was a major source of his
humiliation and disappointment. The trial court cannot be said to have abused its
discretion by admitting highly relevant evidence when the only prejudice is the fact the
story Paul himself told was a damaging one.
III
Prosecutorial Sandbagging?
Paul formulates two attacks arising from the prosecutor‟s final argument in
rebuttal. First, he complains the prosecutors sandbagged him by engaging one
prosecutor, who played a more minor role at trial, to make a perfunctory opening
argument, saving its genuine substantive attack by the prosecutor who conducted the bulk
of the examination. Paul alleges the trial court erred by denying his request to offer a
28
surrebuttal to the second prosecutor‟s rebuttal and depriving him of the opportunity to
offer a reply to the facts and arguments he had not raised in his own closing argument.
Second, Paul claims the substance of the rebuttal argument constitutes prosecutorial
misconduct. Eschewing the old formulation characterizing a prosecutor‟s behavior as
“misconduct” and urging us to consider the more forgiving label of “prosecutorial error,”
the Attorney General defends the prosecutor‟s rebuttal argument and insists the court did
not err by foreclosing the defense from making a surrebuttal argument as requested. We
turn to counsel‟s arguments, the objections that were lodged, and the trial court‟s
rationale in denying the defense request to make a surrebuttal argument and denying its
later motion for a new trial.
We accept for purposes of this issue the trial court‟s characterization of the
defense closing argument. The court summarized what it perceived was a two-part
argument: first, that Paul had no part in the killing and had no motive to kill Roberto
because everything was rosy for him at the farm and he had worked his way into a happy
partnership with his father; but second, his cousin Peter, who was bitter and estranged
from the farm he loved, was a plausible bomb builder because he was capable of
constructing the simple explosive device in question, particularly with the assistance of
the YouTube video found on his computer. The trial court agreed with the prosecutor‟s
position that the defense argument put in issue virtually all evidence that tended to show
Paul‟s motive, technical skills, and past related actions and opened the door to fair
comment on any and all evidence tending to link him to the crime. Thus, the court
disagreed with Paul‟s threshold argument at trial that the prosecutor‟s rebuttal was
improper because it exceeded the scope of the defense closing argument.
We agree with the trial court. Whether or not there is some authority to support
the questionable proposition that a prosecutor‟s rebuttal is limited by the scope of the
facts and evidence argued in the defendant‟s closing argument, the prosecutor did not
introduce evidence outside the record or float a completely new theory of guilt. To the
29
contrary, the prosecutor did nothing more than marshal validly admitted evidence to
counter defense argument: that is, the prosecutor referred to wiretapping evidence to
demonstrate that Paul had superior technical skills to Peter and to his “My Life” entries to
demonstrate he had a motive to kill Roberto, based on a lifetime of indignities and slights
he felt on the farm. Thus, we do not address the theoretical question as to whether there
is some line a prosecutor may not cross during rebuttal argument.
Beyond the substance of the arguments, Paul contends the prosecutors sandbagged
him by withholding the most powerful evidence until rebuttal and depriving him of the
opportunity to answer that evidence. Defense counsel, anticipating the very strategy the
prosecutors ultimately used, complained to the trial court that the first prosecutor offered
only a short opening argument, whereas the second prosecutor had argued for over two
hours when she once again objected to the sandbagging. She thereafter requested the
opportunity to offer a surrebuttal. On appeal, Paul challenges the court‟s denial of her
request.
Whether we conclude that despite our reservation the trial court did not abuse its
discretion or that, even if there was an abuse of discretion, the failure to allow surrebuttal
was harmless beyond a reasonable doubt, our rationale is essentially the same. The
prosecutor did not rely on any evidence outside the record, nor did he raise any new
theory. The jury was well acquainted with the wiretapping evidence as well as with
Paul‟s description of his life. Nothing precluded defense counsel from confronting that
evidence in her closing argument. The fact that the prosecutor chose to highlight the
damaging evidence only in response to the defense claims that Peter, not Paul, had killed
Roberto Ayala and that he had no motive or nothing to gain from the killing was a
strategic choice the prosecutors made. We cannot say the trial court‟s denial of defense
counsel‟s request for surrebuttal constituted an abuse of discretion under these
circumstances, and we also cannot say that additional argument on the same themes
30
already argued would have changed the jurors‟ finding that Paul was guilty beyond a
reasonable doubt.
But Paul insists the prosecutor‟s rebuttal constituted error, even if we assume it
was not intentional. The trial court rejected Paul‟s allegations, most of which are a
repackaging of the arguments we have already addressed. We will not repeat what we
have already said about the prosecutor‟s references to either the wiretapping or the “My
Life” document but will examine Paul‟s other allegations of prosecutorial error.
Paul objects to the prosecutor‟s use of a DNA analogy. A document examiner
expert testified at trial that the paper used in the second letter sent to the sheriff, the
diagram, and the indented paper were chemically indistinguishable. The prosecutor
argued to the jury that scientific experts often use “science speak” or “nerd speak” to
hedge what they are really saying. As an example, he referred to DNA experts who do
not say something is a positive match or is definitely someone‟s DNA but who give
possibilities larger than the number of people who ever lived on earth. Thus, he was
suggesting by analogy that the document examiner could not say the papers were “a
positive match.” The trial court rejected the defense claim that the prosecutor improperly
had compared paper stock analysis to DNA analysis when there was no DNA analysis in
evidence.
Paul maintains the prosecutor‟s comparison to DNA analysis imputed an accuracy
to the paper and ink analysis that was not in evidence, and therefore it was error to allow
the prosecutor to argue the ink, paper, and labels were “matches.” We agree with the trial
court that the argument was permissible as a mere example or analogy. Considered in
context, there is no danger the jurors were misled or that the document examiner‟s expert
testimony was falsely elevated to the stature of DNA evidence.
The prosecutor characterized Paul‟s wiretapping of his ex-wife as “creepy” and
“really unusual,” and stated he taunted his ex-wife‟s parents by telling them about the
wiretapping. This characterization, according to Paul, sought to convince the jury he was
31
a creepy person and, as a result, had a propensity to commit bad acts. It was improper in
Paul‟s estimation because the wiretapping evidence was admissible solely to prove his
technical knowledge, yet the prosecutor transformed it into improper character evidence.
The trial court sustained the defense objection to the prosecution‟s characterizations,
thereby limiting the prejudicial effect of the alleged prosecutorial error. Paul insists the
limiting instruction could not cure the prejudice.
In denying Paul‟s motion for a new trial on this ground, the trial court stated that
the prosecutor‟s “offhand and brief comment” could not be fairly construed as arguing
character. We agree. The jury was properly reminded to consider the evidence solely for
its tendency to prove Paul‟s knowledge of electrical and technical devices. Given the
brevity of the comment, we believe Paul grossly overstates its potential danger and
conclude there was no prosecutorial error.
Nor do we find the prosecutor‟s equally innocuous statement that there is “no such
thing as a prosecution witness” another example of prosecutorial error. We concur with
the trial court‟s analysis that “[t]his comment can, in the context of a case where the
prosecution presented dozens of witnesses over several weeks, only fairly be understood
as a comment that witnesses can be called by either side. Clearly the jury was aware of
which witnesses had been called by which side, and such a statement could not
reasonably mislead any juror on that point.”
We need not consider Paul‟s allegation that the accumulation of errors was
prejudicial even if taken individually they were not. We have found no error at all, and
therefore there are no errors to accumulate. Paul was afforded a fair trial. His trial
lawyer provided excellent representation and advocacy. But 12 jurors of Paul‟s peers
found that the circumstantial evidence proved beyond a reasonable doubt that he
murdered Roberto Ayala and we must respect their verdict.
32
DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
NICHOLSON , J.
33