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testimony to that the questioner intended to elicit.17  

XVI.  Restriction on Second Counsel in Argument

Before the defense began its guilt phase argument, the trial court indicated it would allow only one attorney (Miller, the lead defense attorney) to argue, despite counsel’s suggestion that Maple could better argue “the technical aspect of the experts.”  At this point, at least, the court was apparently unaware of section 1095, which permits two counsel to argue in a capital case.  During a break in Miller’s argument, however, the court reversed itself in part, offering to allow Maple to argue “the bubble shield and paint expert testimony.”  Defense counsel accepted the offer:  Maple said he would argue “only the particular technical aspects.”

Court and counsel, however, apparently understood the proposed division of argument differently; the court thought Maple would argue only the paint comparison evidence, while Maple and Miller believed Maple was to argue all the expert testimony.  Thus, when Maple, after a long discussion of the paint evidence, began talking about the fingerprint on the bubble shield, the court interrupted to urge him to stay on the subject of paint because “Mr. Miller, as you know, is going to cover all the other aspects, or so I’ve been told.”  Maple, on the other hand, observed that “there is a technical aspect of this bubble shield and

17 Although he makes no distinct argument on this basis, the heading of this contention in defendant’s opening brief refers to the cross-examination as “based upon facts not in evidence.”  Counsel objected to the crossexamination on that basis, but the motion to strike was instead made on the ground that the prosecutor’s question had been “inadvertent.”  Nor do we believe the objection was well taken.  The prosecutor asked whether exhibit 6, together with a blue helmet, had been stolen from the back of defendant’s building.  Defendant answered affirmatively.  It is true defendant had not previously testified that the bubble shield he had owned was exhibit 6, but a question that calls for new information does not for that reason assume facts not in evidence.

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