Metropolitan News-Enterprise


Thursday, December 1, 2011


Page 1


C.A.: Improper Courtroom Demonstration Not Prejudicial Error


By SHERRI M. OKAMOTO, Staff Writer


The First District Court of Appeal yesterday upheld the convictions of a Bay Area man for the strangling death of a former sexual partner he met through Craigslist, and the theft of the victim’s prized flutes.

Div. One concluded that a protracted courtroom demonstration, in which the prosecutor directed defendant Alejandro Rivera to recreate the murder of Ted Neff using a mannequin, was improper and inflammatory, but did not necessitate reversal.

Rivera had admitted killing Neff in his townhouse in Baypoint on the night of Dec. 3, 2008, and then setting fire to the residence, after Neff told him “he might have AIDS.” 

The contested issues at trial were Rivera’s intent associated with the homicide and the subsequent theft of a solid gold flute—reportedly worth about $23,000—and a sterling silver one, along with other belongings.

During cross-examination, the prosecutor demanded that Rivera “show us how you killed” Neff, using a mannequin. Defense counsel objected to such “theatrics,” but Contra Costa Superior Court Judge Leslie G. Landau directed the prosecutor to “go find yourself a dummy.”

The prosecutor then returned to court with a female mannequin and had Rivera—over his own objections and that of his counsel—stand in certain positions, take a strap from a trash can in the district attorney’s office, place the strap around the mannequin’s neck, and apply force, as his acts were described for the jury.

The jury subsequently convicted him of first degree murder, grand theft, residential burglary, and arson of an inhabited structure.

Sufficient Objections

Writing for the appellate court, Justice Robert L. Dondero said he was persuaded that “defense counsel’s series of objections, while perhaps not as detailed or precise as possible—understandable given the rather peculiar nature of the proffered evidence—were at least adequate to apprise both the trial court and the prosecution of the grounds for challenging the demonstrative evidence that are presented in this appeal.”

He also reasoned the probative value of the demonstrative evidence was outweighed by its prejudicial effect.

“The probative value of evidence of the reenactment of a crime depends primarily on its similarity to the events and conditions that existed on the night of the murder,” the justice explained, but the courtroom setting “was entirely dissimilar, lacking in the dimensions, configuration and the furniture that was present in the victim’s home.”

Dondero 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.”

He opined that “the courtroom events were suggestive of a slapstick parody,” and did not contribute to an understanding of the case by the jury, particularly since it was undisputed that the victim was strangled and that the defendant was the strangler.

‘Absurd Spectacle’

But, even with this “rather absurd, indecorous courtroom spectacle,” Dondero concluded the judgment against Rivera could still stand because the “[o]verwhelming evidence, including defendant’s statement and testimony, proved that he intentionally strangled Neff, stole his flutes and computers, and set fire to his residence.”

There was, in contrast, little evidence to support the defense theory that Rivera killed Neff in unreasonable self-defense or in the heat of passion, Dondero said. There was no evidence of unreasonable self-defense at all, the justice explained, and the claim that Rivera became suddenly enraged at learning that Neff may have infected him was undermined by his admission he returned to attack the victim a second time, the subsequent fire and theft, and the defenant’s failure to obtain HIV testing or refrain from subsequent sexual conduct.

Presiding Justice James J. Marchiano and Justice Sandra L. Margulies joined Dondero in the decision.

The case is People v. Rivera, A130421.


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