APPEAL from a judgment of the Superior Court of Placer County, Mark S. Curry, Judge. Affirmed. (Super. Ct. No. 62063328)
The opinion of the court was delivered by: Hoch , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In 1982, Janet Kovacich disappeared after telling her husband that she was leaving him and taking their two young children with her. The husband, defendant Paul Ralph Kovacich, Jr., was controlling and abusive in the marriage; he admitted to cheating on her and was seen in the arms of another woman within two days of her disappearance; he played no active role in searching for her despite the fact that he was a trained dog handler with the Placer County Sheriff's Department; and he told his new girlfriend that his wife "wasn't coming back." In 1995, a portion of Janet's skull was discovered near Rollins Lake, a place defendant had experience patrolling. The skull, which was not determined to be Janet's until 2007, had a hole that was consistent with an entrance wound caused by a gunshot from a large caliber handgun, similar to the weapon defendant had been issued as a law enforcement officer.
More than 26 years after Janet's disappearance, a jury convicted defendant of first degree murder and found that he personally used a firearm during the commission of the crime. The trial court sentenced defendant to state prison for an indeterminate term of 25 years to life plus a consecutive determinate term of two years for the firearm enhancement.
On appeal, defendant raises several contentions challenging the conviction: (1) the evidence was insufficient to support the conviction; (2) the trial court committed reversible error by admitting out-of-court statements that Janet feared defendant; (3) the trial court committed reversible error by admitting out-of-court statements that defendant kicked the family dog to death; (4) the trial court prejudicially erred by allowing expert testimony on intimate partner abuse and the prosecution engaged in misconduct by eliciting certain responses from the expert that violated an in limine ruling; (5) defendant's trial counsel rendered ineffective assistance by failing to proffer certain evidence purported to undermine the prosecution's case; and (6) the trial court prejudicially erred by excluding evidence that the chief investigator harbored a bias against defendant and by refusing a requested instruction that would have highlighted the defense theory that the murder investigation was not conducted in good faith. We disagree with each contention and affirm the judgment.
The circumstantial nature of the evidence requires that we set forth the facts of this case in unusual detail. We do so in the light most favorable to the verdict, resolving all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Vu (2006) 143 Cal.App.4th 1009, 1013.)
Defendant and Janet were married in 1973. Janet's parents, Leo and Jean Gregoire, did not approve of Janet's relationship with defendant and did not attend the wedding.*fn2 The marriage produced two children. Kristi was born in 1975. John was born in 1977. The family moved to Auburn in 1980.
Defendant worked as a sergeant in the Placer County Sheriff's Department. He received a bachelor's degree in police science, completed a master's thesis entitled, "Case Study of the Development of a Police K-9 Unit," and was certified as a dog handler by the Commission on Peace Officers Standards and Training. Janet was primarily responsible for raising the children and was a devoted and loving mother. As Joyce White-Janoski, one of her closest friends, recalled: "She had a very strong bond with [her children]. She was always hugging them. They would be sitting on her lap. She -- her children were very important to her. She built her life around her children." Janet's older brother, Gary Gregoire, observed: "She loved her children, and that was very, very, very important to her. You can tell by the photos we just went through, Janet just loved the kids, and they were very -- that was the most important thing in her life [was] her two children." Glenda Shields, one of Janet's neighbors, also recalled: "She was very caring, very devoted to her children, spent a lot of time playing with them, interacting with them."
The relationship between defendant and Janet was marred by marital discord, including verbal and physical abuse. Defendant routinely called Janet "stupid shit" and spoke to her in a demeaning tone. He also criticized Janet's physical appearance, particularly the size of her breasts, something she was "very self-conscious about."
At times, defendant's disparaging words turned into physical violence. On several occasions, Janet was observed with bruises on her arms. On one occasion, while White-Janoski was at their house, defendant hit Janet with a large metal utility chain. On another occasion, while boating at Rollins Lake, what began as a water fight ended with a welt on Janet's leg as defendant threw handfuls of mud at her while she begged him to stop. On another boating trip, defendant's close friend, Steven Kassis, cut his foot on some trash Janet had left on the boat; defendant responded by angrily shoving her into the water.
Defendant also exercised control over the marriage. According to defendant's own account of the marriage, he "took the role of a parent" with respect to Janet. Janet confirmed that she felt as though defendant "treated her more like his daughter rather than his wife." During the fall of 1979, Janet took a human sexuality course at Sierra College and confided in her instructor that defendant was "very demanding and controlling," but that she was too afraid to leave him at that time because she thought defendant's position in law enforcement would enable him to keep the children. According to Elaine Cunningham, one of Janet's neighbors, Janet was "very nervous all the time," particularly when defendant was on his way home because she "needed to be home when he came home."
In 1980, Janet's brother Gary took some leave time from his service in the Army to visit his parents. During the visit, Gary and Janet went out to lunch together. As they drove to the restaurant, defendant pulled them over in his patrol car. Janet was "very nervous" as defendant approached the car. When Gary asked why he had been pulled over, defendant responded that "he could pull [Gary] over when he wanted to," and that if Gary disagreed, defendant could "find something wrong with the car" and write him a ticket. Gary did not argue with defendant, who walked back to his patrol car and waited for Gary to drive away. Gary and Janet continued to the restaurant, where Janet told her brother that she was "concerned" about her marriage to defendant and felt as though he monitored her movements.
In December 1981, Janet told Gary that "she didn't feel like she loved [defendant] anymore, that the relationship was not what she wanted in her life." She also said that she planned to leave defendant and was embarrassed by the fact that her family had warned her not to marry him. At the beginning of 1982, she told Gary that "she wished that she would have gone to school and gotten her degree and did things like that." Around this time period, she also told one of her friends, Christine Milam, that she was "miserable" in her marriage, "afraid" of defendant, and that she "wanted to leave [him]." Milam witnessed firsthand defendant's controlling and abusive behavior during a trip to the movie theater with Janet, Milam's son, and Janet's children. As Milam described: "[Defendant] followed [them] all the way to the movies, and he came barreling up in his truck behind [them]. He jumped out of the truck, grabbed ahold of [Janet], was screaming profanities at her." Milam held her son and Janet's children away from the confrontation while defendant dragged Janet a short distance. Janet was "[c]rying, upset, scared to death."
Defendant's abusive behavior extended to the family dog. He and Janet owned two German Shepherds, Adolph and Fuzz. Adolph was defendant's police dog and Fuzz was the family dog. In August 1982, about a month before Janet disappeared, Fuzz was taken to the veterinary clinic in critical condition. The dog died on the examination table, "reflexively gasping [for air] because its brain [was] deprived of oxygen and blood." As defendant explained the events leading up to Fuzz's death, the dog got into some garbage and defendant kicked the dog several times in order to discipline the animal. He admitted that he "went overboard," but denied causing the dog's death. He also admitted that Janet and the children witnessed the assault, as they had on numerous prior occasions.
Janet believed that Fuzz's death was caused by the beating. In tears, she told her brother Gary about the dog's death and explained that "she was starting to feel threatened at home, and she was worried for her safety, and she was worried for Kristi and John." At a Placer County Deputy Sheriff's Association barbeque, Janet cried as she told Gail Easter, the wife of another Placer County Sheriff's Department sergeant, that defendant had kicked the dog to death and that she was "very frightened" of defendant. She also told Frances Myres and Glenda Shields, two of her neighbors, that defendant had kicked the dog to death. Myres described her demeanor as "very sad and very upset." Shields described it as "hysterical, crying, extremely distraught."
Janet's Decision to Leave Defendant
Janet decided to leave defendant shortly after Fuzz's death. While she had left defendant twice before, this time her resolve appeared to be stronger. She enrolled in pre-nursing courses at Sierra College two days after the dog died. Janet also called a close friend, Kim Johnson, discussed her marital problems, asked how Johnson had ended her marriage, and asked for the name of Johnson's divorce attorney. She then asked whether she could stay with Johnson, which left Johnson with the impression that she was "setting up a network of places she could go if she left [defendant]."
Janet also told her friend White-Janoski: "I'm finally going to leave [defendant]. I am really going to do it this time." She explained that she wanted to leave because defendant was demeaning and abusive towards her, and that she also planned to take the children when she left. Janet talked about going back to school and sounded "more confident" and "more like her old self." About the same time, Janet began researching the prospect of removing Kristi and John from their current school, St. Joseph's Catholic School, and placing them in a different private school, Forest Lake Christian School.
About a week later, Janet called her brother Gary and informed him that she planned to leave defendant, go back to school, and move herself and the children out of the house they shared with defendant. She also told Gary that she planned to change the children's school. According to Gary, his sister sounded "more sure of herself" during this conversation.
The Days Leading up to Janet's Disappearance
In September 1982, six days before she disappeared, Janet had breast augmentation surgery. Janet was "bright and cheerful" and told the surgeon that she would be enrolling her children in a new school the following week, and would be going "back to college herself." Following the procedure, she was informed that recovery would take at least six weeks, and that she should restrict the movement of her arms and refrain from driving. The next day, Janet returned to the surgeon for a follow-up appointment and seemed "pleased with the results." Two days before she disappeared, Janet told a friend, Jeannette Baldwin, that she was "excited about going back to school" and also mentioned that she was transferring her children from St. Joseph's to Forest Lake, but "was anticipating a conflict" with defendant.
The day before Janet disappeared, which was the day after Labor Day and the first day of school at St. Joseph's, Janet spoke to Janice Reynolds-Gage, another parent at the school who had left an abusive relationship of her own. Janet shared that "she felt emotionally and mentally abused, that there was taunting going on in her relationship about her appearance," that she "had some plastic surgery done and was going to have further plastic surgery done" because "she was feeling fairly low in self-esteem," and that she was "frightened" of defendant and "considered filing a restraining order against [him]." That night, Janet spoke to her neighbor Myres on the phone and told her that she was "excited about going [to school], anxious to get going on it, and looking forward to a new phase in her life, a career, and the fun of going back to school and a career and making something important of herself."
Meanwhile, during the early morning hours the day before Janet disappeared, defendant had finished his Labor Day shift patrolling the California State Fair and was attending a law enforcement party in celebration of "getting through the fair." At the party, defendant was seen "embracing and kissing" another woman. This was not the first time defendant had ventured outside the marriage. Defendant himself admitted to having sexual encounters of the "one night stand" variety with other women.
On September 8, 1982, the morning Janet disappeared, her children were picked up for school around 8:00 a.m. by Brenda Krch, one of Janet's neighbors and participant in a multi-family carpool arrangement. Around 9:00 a.m., Janet called Forest Lake Christian School and told Marion Entz, the registrar, that she wanted to enroll her children in the school, but because of her recent surgery, she could not drive herself and would need to call back to schedule an appointment when she had secured a ride. About an hour later, Janet called back, told Entz that she had found a ride to the school, and scheduled an appointment for 11:10 a.m. Janet neither showed up for the appointment nor cancelled it. She was never seen again.
According to defendant's version of the morning's events, told to homicide detectives a week later, after the children were picked up for school, Janet went upstairs to their master bedroom, where defendant was still in bed, and began to do her hair and makeup in the master bathroom. She then started yelling about her father "going out on [her] mother" and "drinking again." Defendant told her to "give the guy a break," and said, "he's got cancer. . . . I'm sure he doesn't have all that much longer to live." He then got up and began to get ready for the day.
According to defendant, a short time later, Janet told defendant that she was "unhappy" with their marriage, but offered no specific grievances. Defendant, feeling "a little cocky" because "a couple girls looked at [him]" while he was at the State Fair, suggested that they get a divorce. As defendant explained, he wanted to "beat her to the punch and . . . mentally push her in a corner to see how serious" she was about leaving. After some "vague back and forth," Janet agreed to a divorce and they calmly discussed property division, custody of the children, and visitation rights. After a pause in the discussion, Janet brought up changing the children's school from St. Joseph's to Forest Lake. Defendant nonchalantly agreed, "again pushing her in a corner." Janet then made two phone calls to Forest Lake. After the first phone call, defendant offered to drive Janet to the school, but she refused explaining that she would get her own ride. She then called the school again and scheduled an appointment for 11:15 a.m. Defendant assumed that Janet's mother would be taking her to the appointment and left to run some errands.
The next time defendant's location was confirmed by a witness was after 11:30 a.m. at his gym. This was according to an aerobics instructor who testified that she saw him at the gym either before or after her two aerobics classes, which ran from 9:00 to 11:30 a.m.*fn3 Defendant was then seen between 12:00 p.m. and 12:30 p.m., when he stopped by the jail to check his mailbox.
Around 3:00 p.m., Krch drove the children home from school and saw defendant outside washing his truck. Defendant asked: "Is Janet with you?" Then he said: "Oh, no. She wouldn't be. That's right. She's with her mother." Around 4:00 p.m., defendant called Forest Lake and angrily demanded: "Where's my wife?" Entz explained that Janet never made it to the appointment. About the same time, defendant called their neighbor Myres and asked whether "she had seen Janet or seen anything like cars leaving the house." Myres responded in the negative. Around 7:00 p.m., Entz called defendant to check on Janet. Defendant said: "I think she might be at her mother's. She often goes there." Around 8:00 p.m., defendant called Janet's parents' house, and spoke to Janet's father. Janet was not there.
Janet's mother worked as the vice principal at San Juan High School in Citrus Heights. The school's principal testified that she was present at the school on September 8, 1982. He also explained that the first few weeks of school was a "very busy time" for administrators, requiring them to work "10, 11 hours each day trying to get the kids in classes, get them registered, get schedules out, talking to parents, just making all the adjustments in the schedule that have to occur." That night, Janet's mother also had a meeting with parents regarding the school's new attendance policy.
The Days Following Janet's Disappearance
On September 9, 1982, defendant went to work at the jail and calmly informed Sergeant Stephen Butts that his wife was missing. He stated that there was a "minor altercation" over changing the children's school, that Janet "advised him that she was upset with her role in life," and that "she wanted to separate." In front of Butts, defendant called Janet's mother on the phone, asked if she knew where Janet was, and told Butts that she was not with her mother. Defendant then told Butts that Janet was "depressed over her plastic surgery" and that "she may have committed suicide." Despite this dire suggestion, defendant told Butts to "hold off on filing a report to see if he could locate her."
If defendant was attempting to locate his wife, he kept it a secret from friends and neighbors. Aside from the handful of inquiries recounted above, defendant neither asked whether anyone had seen Janet nor asked for help finding her. When Reynolds-Gage found out that Janet was missing, she called defendant to see if there was anything she could do to help. He responded: "I don't need anything. We've got it covered." However, despite being a trained dog handler, he never participated in the search that was conducted in the days following his wife's disappearance.
Nor did defendant show concern for his wife during this time period. He missed no days of work following Janet's disappearance and the children missed no days of school. The aerobics instructor who provided defendant with a partial alibi for the morning Janet disappeared spoke to him after learning of her disappearance and expressed her concern. Defendant responded: "Remember, I was here that day." His demeanor was "cold" and "aloof," showing "no apparent concern for his wife." Defendant's friend Kassis also described his demeanor as "nonemotional" when talking about his wife. Defendant told Kassis that Janet "just left" and mentioned that he believed her parents had something to do with her disappearance. He also said that "he would make sure [her parents] never had access to their grandkids." And six days after Janet disappeared, defendant had a document notarized that transferred custody of the children to defendant's parents in the event that an accident or injury rendered him unable to properly care for them.
On September 11, 1982, three days after Janet disappeared, defendant called Sergeant Butts and calmly stated that he wanted to file a missing persons report because Janet "still hadn't returned home" and defendant "believed that she had met with an accident due to her absence." Butts called Janet's mother, who was "upset" because her daughter was missing and she believed defendant "had done something to her." Butts then contacted Chief Nicholas Willick and Detective Danny Boon with the Auburn Police Department and relayed the information to them.
The next day, Detective Boon interviewed Janet's mother. As Boon described her demeanor: "Emotionally, she was very distraught, very -- by the time the interview was over, I was nearly in tears myself. She was crying off and on. There were times when she was angry. It was a very, very -- it was a very hard interview for her." Janet's father was also present for the interview. He was "somewhat quiet" but was also "nearly in tears at times."
Later in the evening, Detective Boon spoke to defendant at the jail. In contrast to the demeanor of Janet's parents, defendant was "very calm" and "very placid." Defendant told Boon that he believed Janet's mother might have hidden her from him. He also told Boon that the morning Janet disappeared, they had a "discussion about their marriage" and "some of the things they discussed were divorce, property settlement, kids, and moving the kids from St. Joseph's to Forest Lake." Defendant explained that he agreed with everything Janet brought up because "he was playing head games with her." He also told Boon that Janet had made two phone calls to Forest Lake that morning, one at 9:00 a.m. and another at 10:00 a.m., and that he left the house to run errands after she refused his offer to drive her to Forest Lake. Defendant further told Boon that he assumed Janet was with her mother because when he called their house the night of her disappearance, Janet's mother was not home either.
When Detective Boon asked whether defendant had noticed "anything unusual" about the condition of the house when he returned home, defendant responded that "he hadn't looked that good" and offered Boon the keys to the house to conduct a search. Boon then performed a cursory search of defendant's house to determine whether there were any signs of a struggle and found nothing out of the ordinary. He did find a woman's watch and a two-ring wedding set next to the sink in the master bathroom. When he returned defendant's keys and told him about the watch and wedding set, defendant seemed surprised and said he had not seen them.
The investigation continued September 13, 1982. Phone calls were made. The neighborhood was canvassed. Potential witnesses were interviewed. Detectives determined that there was no recent bank account activity and that Janet did not show up for her college classes. Local hotels and various modes of transportation were investigated, including rental car companies, the local taxi service, the bus depot, a private air service operating out of Auburn, and the Sacramento International Airport. No leads were uncovered. The media was also informed of Janet's disappearance. The next day, detectives conducted forensic searches of defendant's house, his cabin in Cisco Grove, and his parents' property in Lake of the Pines. His vehicles were also searched. Nothing useful was uncovered in these searches.
On September 15, 1982, defendant was formally interviewed by Detective Boon and Inspector Johnnie Smith from the Placer County Sheriff's Department. Defendant provided the version of events recounted above, essentially that the morning Janet disappeared, they calmly discussed divorce, property division, child custody, and transferring the children to Forest Lake, that defendant agreed with everything Janet said as a psychological game, and that he left the house to run errands after she made two phone calls to Forest Lake and refused his offer to drive her to the school. He also provided his version of the dog-kicking incident and admitted to cheating on Janet.
Defendant further explained that the first two days Janet was missing, he believed she was with her mother. After that, he began to suspect suicide and was "really down." But then, he "picked up a little bit" in the hope that she "just called a friend that [he was] not aware of, ah, and ah, ah, this might be a male, and just took off." While defendant said that he did not suspect Janet of cheating on him, he then mentioned that "she goes out shopping a lot" and stated: "If she wanted to cheat on me, she could probably do it too and be so discreet about it, that I wouldn't know about it." Later in the interview, defendant stated that he believed Janet had previously tried to kill herself. He also said that he "wouldn't put it past" Janet's mother to hide her from him and their children regardless of the psychological trauma that would cause the children.
Despite the fact the interview was conducted on Janet's birthday, defendant never mentioned this to Detective Boon or Inspector Smith. Defendant was calm through most of the interview, raising his voice towards the end when he said to Smith: "I don't want to play careers or education against education, but I bet I have more background and more, more -- other ideas on, on law enforcement than you will ever have." And at the close of the interview, defendant said to Smith: "I've heard a lot about you. This is going to be an interesting challenge." At no point during the interview did defendant become "teary eyed or choked up or show any sign of emotion."
Later in the day, Inspector Smith interviewed Janet's parents. In contrast to defendant's demeanor, they were "very emotional and upset over the disappearance of their daughter."
The investigation continued in the following days and weeks. Extensive coordinated aerial and grid searches were conducted. As already mentioned, defendant was never seen searching for his wife. Throughout the investigation, Janet's mother remained in communication with Chief Willick and Detective Boon, repeatedly checking on the status of the investigation. Defendant may have called once. Janet's mother also expressed concern about the objectivity of the investigation because defendant was a law enforcement officer, prompting Boon to contact several other law enforcement agencies to review the case, including the Sacramento Police and Sheriff's Departments and the California Department of Justice.
Chief Willick also contacted Detective Michael Davinroy from the Fullerton Police Department to assist in the investigation. Davinroy interviewed defendant on November 23, 1982. This interview became heated. Defendant stated that he felt "cheated" that the detectives did not talk to the aerobics instructor at the gym about his alibi until he "started bitching" about it to Inspector Smith several days after Janet disappeared. He also said that he believed Janet's mother paid her to disappear and further stated: "I think she's out there, and I think she's having a hell of a time."
In February 1983, defendant began a serious relationship with C.K. Martin, who also worked at the Placer County Jail. The relationship lasted about five months and included Martin moving into defendant's house. When they first started dating, defendant told Martin that he did not know what happened to Janet. Later in the relationship, he said that she "left with someone else." At some point, Martin told defendant that she was not comfortable sleeping on the same mattress that he slept on with Janet for so many years and suggested that he get a new mattress. Defendant responded that "he didn't need to get a new mattress; that she wouldn't be sleeping on it anymore. She wasn't coming back." During the time Martin lived at the house, defendant discouraged the children from talking about their mother in front of her. And on one occasion, when John cried about his mother's absence, ...