The trial court committed harmless error in denying defense request to reopen argument after court modified felony murder instruction. Defendants Ardoin and Jaquez were convicted of first degree murder. During deliberations the trial court revised the felony murder instructions to offer a new theory of liability. Ardoin argued this denied him due process by providing a new basis for culpability after closing argument. The felony murder and aiding and abetting instructions initially provided the jury referenced only Jaquez; Ardoin was prosecuted as the killer. During deliberations the jury asked if it believed Ardoin was not the direct perpetrator, could it still find him guilty of felony murder. Thereafter the aiding and abetting instructions were altered to add Jaquez, and the felony murder instruction was revised to apply to both defendants. Ardoin’s counsel’s motion to reopen argument to deal with these revised instructions was denied. This was error. Once the trial court clarified the felony-murder instruction to include both defendants, it should have allowed Ardoin to present argument regarding this new theory of liability. However, the error was harmless. Ardoin, was placed on notice of his potential culpability under the felony-murder rule as an aider and abettor through the first degree murder charge and the evidence presented. Thus the belatedly altered felony-murder instruction did not introduce any new or different theory or facts into the case. Nor was Ardoin denied effective assistance of counsel in his attorneys formulation of the argument to present to the jury.
The trial court did not abuse its discretion by excluding proffered defense impeachment evidence. Jaquez moved to introduce under Evidence Code section 788, evidence of prior acts of prosecution witness Burgos as reflecting on her honesty and tendency to manipulate. This evidence included the circumstances of the acts. The trial court granted the request with respect to the fact of Burgos prior convictions, but excluded the circumstances of the offenses under Evidence Code section 352. This was not an abuse of discretion. The fundamental right to confrontation gives the defense the opportunity for effective cross examination, not examination which confronts in whatever way and to whatever extent the defense wishes. The accused must comply with established rules of procedure designed to assure the fairness of criminal proceedings. Before and after the Truth in Evidence amendment in 1982, it has been the rule that the circumstances underlying prior offenses are inadmissible to impeach, unless the witness attempts to mislead or minimize the circumstances of the offenses. Further, there is no constitutional violation “unless the prohibited cross-examination might reasonably have produced a significantly different impression of credibility.” Here, the defense had the opportunity to thoroughly impeach Burgos without the excluded evidence.
The prosecution did not commit Griffin error by referencing Jaquez’s failure to present evidence. During closing argument the prosecution several times noted Jaquezs failure to offer an innocent explanation for his possession of the deceaseds drugs and other evidence. However, the prosecutor did not impermissibly reference Jaquez’s assertion of his right to remain silent as prohibited by Griffin v. California (1965) 380 U.S. 609, but was merely summarizing the evidence and was pointing out that Jaquez did not present any evidence. Other contested comments were made in rebuttal to argument by the defense, and was merely commentary on the defense failure to present argument on certain aspects of the evidence.