O'Mara arguing that this evidence is "prior act" for purpose of character.
Back to the argument that O'Mara waived the objection, he'll concede the first call if he has to.
Back to characterizing the evidence under evidence code. He suggests that Nelson is going to have to listen to the calls. They do not show ill will or hatred. They show a description of reports to the police. If you allow the state to show this, it will not show the jury ill will, hate, spite, second degree. The state will refer to this as profiling, and suggest to the jury that on 2/26, Zimmerman was seething under the surface. O'Mara describes how the past acts played in the case of a man and his wife's extramarital affair - which is connected - here there is no connection.
Six prior acts, called responsibly, then the state will argue Zimmerman is too responsible? O'Mara saying that more than 7 or 8 minutes of past, if relevant, should be admitted by the state only after the state produces evidence of a seething anger. The state is inviting the jury to make that leap. Evidence so far is that Noffke did not sense any anger, but the state might be able to produce some later. Williams rule requires 10 days notice, and O'Mara is not waiving that. State failure to bring this up on shorter than 10 day notice is fatal.
O'Mara says if the past calls had signs of seething anger, then they would be similar and might be admissible (given the state has other evidence of seething anger element of 2nd degree murder). This is character evidence, not state of mind evidence.
If it comes in as 404.1, the state can bring it in only as rebuttal. Nelson asks if the opening statement opens the door to rebuttal. O'Mara says no, the judge is going to instruct the jury to ignore opening statement, it is not evidence. What about cross examination of Noffke, does that create an issue? O'Mara asks if she means Noffke said there was no sign of animosity? O'Mara says he doesn't think it does. If we go into Zimmerman's past - if those calls show proper behavior - we have opened Zimmerman's history for rebuttal of an under the surface "ill will", and making character of Zimmerman an issue? Nelson asks whether the defense put Zimmerman's character in issue by cross exam of Noffke. O'Mara says assume that is the case, Feb 26 is wide open - but going back in time is a different question for admissibility.
Other cases, have to be similar crimes - no case law on prior acts of good acts, prior acts of good behavior is put before a jury for the purpose of showing motive.
Nelosn says you are arguing apples and oranges. State is not arguing Williams rule, defense is arguing Williams rule (character evidence). O'Mara says the prior act has to be relevant to prove the state's case. Similar to the experts, it can come in, my defendant didn't do anything wrong, but the risk is confusing the jury.