How have the courts dealt with a defendant's claim of prosecutorial misconduct in questioning a defense expert?

Defendant contends the prosecutor's cross-examination of certain witnesses placed inadmissible material before the jury. With respect to the cross-examination of defendant, one claim is that in asking him to review a copy of a defense investigator's report, the prosecutor improperly exposed the jury to hearsay information in the report. For example, the prosecutor asked whether the exhibit refreshed defendant's recollection that when defendant left Floyd's [house] for the last time that night[,] that [Floyd] followed [defendant] out. The trial court sustained the defense objection and the prosecutor rephrased the question. The crux of defendant's claim is that the prosecutor defied a court order in referring in his questioning of defendant to the contents of the defense investigator's report. We agree this was misconduct. (See People v. Crew, supra, 31 Cal.4th 822, 839, 3 Cal.Rptr.3d 733, 74 P.3d 820.) Defendant further claims that the prosecutor asked argumentative questions and on four separate occasions improperly commented on defendant's answers with phrases such as Really or I see. On the facts of this case, however, no reasonable probability exists that without the objectionable comments or inclusion of improper material in the prosecutor's questioning of defendant the jury would have reached a guilt phase verdict more favorable to defendant.

We now turn to defendant's claim of prosecutorial misconduct in questioning defense expert Pittel, who testified

[81 Cal.Rptr.3d 686]