People's 1/95 Proffer Of Evidence in Menendez Retrial


People Of The State Of California v. Joseph Lyle Menendez And Erik Galen Menendez, People's Supplement To Oral Argument Regarding Proffer Of Evidence To Be Presented Before A Single Jury

GIL GARCETTI
District Attorney
DAVID P. CONN
Head Deputy District Attorney
CAROL JANE NAJERA
Deputy District Attorney
210 West Temple Street
Los Angeles, California 90012
Telephone: (213) 974-3739

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES

CASE NO. BA068880

DATE: JANUARY 23,1995
TIME: 9:00 A.M.
PLACE: DEPARTMENT NW "N"

TO THE HONORABLE STANLEY WEISBERG, JUDGE OF THE VAN NUYS SUPERIOR COURT, AND TO THE DEFENDANTS AND THEIR ATTORNEYS:

The People respectfully submit the following supplement to our oral argument presented on December 20,1994, that was made in conjunction with our motion entitled "PROFFER OF EVIDENCE TO BE PRESENTED BEFORE A SINGLE JURY." At that time, this court invited the People to provide the court with additional information regarding various pieces of evidence we seek to present before a single jury. The People of the State of California now provide that information to the court in this supplement.

TABLE OF CONTENTS

I. INTRODUCTION

II. THE CENTRAL CHARACTER IN ALL THREE DRAFTS OF THE SCREENPLAY KILLED HIS PARENTS FOR FINANCIAL GAIN

III. THE ESCAPE PLANS DO NOT IMPLICATE ERIK MENENDEZ
1. NO REDACTION IS NECESSARY BECAUSE THE PLANS DO NOT SUGGEST THAT ERIK MENENDEZ WAS NECESSARILY INVOLVED IN THE PLAN
2. THE PLANS COULD BE REDACTED, IF NECESSARY, TO ELIMINATE REFERENCES TO ERIK MENENDEZ WITHOUT PREJUDICE TO LYLE MENENDEZ
3. THE PLANS ARE ADMISSIBLE TO PROVE CONSCIOUSNESS OF GUILT

IV. REDACTION OF CRAIG CIGNARELLI'S STATEMENTS, DOES NOT PREJUDICE ERIC MENENDEZ

V. BOTH UNREDACTED AND REDACTED VERSIONS OF THE SEPTEMBER 17 STATEMENTS ARE ADMISSIBLE
1. THE UNREDACTED STATEMENTS DO NOT INCRIMINATE THE NON-DECLARANT
2. USE OF THE REDACTED STATEMENTS WOULD NOT PREJUDICE THE DECLARANT

VI. THE TESTIMONY OF BRIAN ANDERSEN IS ADMISSIBLE BEFORE A SINGLE JURY

VII. THE TESTIMONY OF MARK SLOTKIN IS ADMISSIBLE BEFORE A SINGLE JURY

VIII. THE TRACY BAKER LETTER IS ADMISSIBLE BEFORE A SINGLE JURY
1. THE TESTIMONY OF ERIK MENENDEZ MAY NOT BE PUT INTO EVIDENCE EXCEPT BY THE PROSECUTION
2. IF ERIK MENENDEZ ELECTS TO TESTIFY, THE STATEMENT OF LYLE MENENDEZ WOULD BE ADMISSIBLE AGAINST HIM AS A DECLARATION AGAINST PENAL INTEREST

IX. THE ATTEMPTED PURCHASE OF PROPERTY BY ERIK MENENDEZ IS ADMISSIBLE BEFORE A SINGLE JURY

X. THE NUMBER OF LIMITING INSTRUCTIONS IS IRRELEVANT

XI. CONCLUSION

I INTRODUCTION

On December 20, 1994, argument was heard in Dept. NW "N" on the motions entitled "PEOPLE'S PROFFER OF EVIDENCE TO BE PRESENTED BEFORE A SINGLE JURY" and "PEOPLE'S SUPPLEMENTAL PROFFER OF EVIDENCE TO BE PRESENTED BEFORE A SINGLE JURY." At that time, this court invited the People to provide the court with additional information regarding the following matters:

1. The screenplays - Counsel for Erik Menendez contested the People's assertion that a theme which runs through all three drafts written by Erik Menendez is the killing of the central character's parents for financial gain. The court invited the prosecution to provide citations for our assertion. In this supplement we identify those areas of the screenplay where this is established and provide the court with relevant attachments from the screenplays themselves. (See Attachments A-1, A-2, and A-3 ).

2. The escape plan- It was argued by counsel for Erik Menendez that Erik Menendez would be incriminated if the People were to offer Lyle Menendez's escape plans against Lyle Menendez, because they make reference to Erik Menendez. As we will show, the escape plans do not suggest that Erik Menendez was necessarily a participant in the plan to escape, and in any event, they could be redacted to eliminate any reference to Erik Menendez. (See Attachments B-1 and B-2).

3. Statements of Craig Cignarelli - The court noted the difficulty of ascertaining whether redacting the statements of Craig Cignarelli to eliminate references to Lyle Menendez prejudices Erik Menendez, insofar as the court does not have a copy of the unredacted statements. In this supplement we provide the court with a copy of the unredacted and redacted statements (See Attachments C-1 and C-2), and we explain below how these statements can be redacted without prejudice to Erik Menendez.

4. September 17 statements of the defendants - The People argued that the September 17 statements made by each defendant are admissible without any redactions, because although each defendant makes reference to the other defendant in each statement, both statements falsely exculpate both the declarant and the non-declarant. Thus, insofar as neither statement "facially implicate" the non-declarant, neither statement is incriminating to the non-declarant and neither raise Aranda-Bruton concerns. Nevertheless, the court asked the People, perhaps out of an overabundance of caution, whether the statements can be redacted to delete references to the non- declarant. In this supplement we provide the court with redacted and non- redacted statements of each of the defendants (See Attachments D and E), and we explain below why both redacted and unredacted statements are admissible.

5. The testimony of Brian Andersen - Defense counsel argued during the hearing that because they were not sure what the proposed testimony of Brian Andersen consisted of, they could not respond to our motion to offer his testimony before a single jury. In this supplement we identify what it is we are offering as to him and demonstrate how such evidence would be admissible before a single jury.~

6. The testimony of Mark Slotkin - Defense counsel argued during the hearing that because the police reports are unclear, they are not sure what the proposed testimony of Mark Slotkin consists of. In this supplement we provide the court with copies of the police reports (See Attachment F-1), and notes (See Attachment F-2),we describe below how such proposed testimony is sufficiently clear to put the defendants on notice as to the evidence that will be presented at trial.

7. The Tracy Baker letter- During the hearing, an argument was made that we would not be able to use the Tracy Baker letter against Lyle Menendez because Erik Menendez testified that Tracy Baker was present during the dinner in question, and thus Lyle Menendez's letter, which suggests that Lyle Menendez was asking Tracy Baker to commit perjury, could be used against Erik Menendez, denying Erik Menendez his right to confrontation. In this supplement we have attached the Tracy Baker letter (see Attachment G), and we note how this issue would arise only if the claim of Erik Menendez that the incident in question actually took place comes before the jury. Yet insofar as Erik Menendez cannot offer his prior testimony in evidence, unless the People offer his testimony, this issue will not arise in the People's case. Moreover, if Erik Menendez elects to testify in regard to this incident, we would then ask that the Tracy Baker letter, having been received in evidence as a declaration against penal interest against Lyle Menendez, also be considered against Erik Menendez because it is a declaration against penal interest supported by sufficient indicia of reliability to make such statement admissible against a non-declarant.

8. Attempted purchase of property by Erik Menendez - During the hearing an issue was raised as to whether Erik Menendez attempted to purchase real estate following the murder of his parents. Counsel for Erik Menendez suggested that there was not an actual attempt to purchase, and the court indicated that it lacked sufficient information regarding this issue to make a ruling. In this supplement we provide the court with a copy of the relevant police report (see Attachment I), and we argue below that this evidence is relevant and admissible as to Erik Menendez.

II THE CENTRAL CHARACTER IN ALL THREE DRAFTS OF THE SCREENPLAY KILLED HIS PARENTS FOR FINANCIAL GAIN

The three screenplays of Erik Menendez, written both before and after the defendant murdered his own parents, reflect that the central character was involved in the murder of his wealthy parents for financial gain (See Attachment A-1, A-2, and A-3). In the first screenplay (Attachment A-1), the central character, Hamilton Cromwell, is introduced "flipping through the files" until he finds one entitled, "Cromwell Financial Status." "He sits down and lights a candle and the light reveals a book of the family's will titled 'Will and testimony of Arthur Cromwell."' The will reads:]

To my beloved son Hamilton, a man I have respected and felt proud to father, I bestow the Cromwell estate, and the money in my Swiss account...one hundred fifty-seven million dollars and the pride of the family, the portrait of Oliver Cromwell.

In the next scene Hamilton Cromwell enters his parents' bedroom carrying a 'razor rope," which is described as a "weapon designed to strangle:

" The door opens exposing the luxurious suite and Mr. and Mrs. Cromwell are lying in bed. Their faces of questioning horror as Hamilton closes the door behind gently, saying.... Hamilton: Good evening mother, good evening father (his voice is of attempted compassion but the hatred completely overwhelms it). He is intensely psychotic and extremely anxious to obtain his inheritance. A character worthy of Jekyll and Hyde.

The script continues: "All light is extinguished and the camera slides down the stairs as screams are heard behind."

In the second screenplay, (Attachment A-2), the story begins with the murder of Jonathan Cromwell. He is "lying in the rug in a pool of blood. His neck has been slashed. Camera tracks man as he begins to walk slowly up the stairs. In his gloved hand he carries a 'razor rope."' The murderer continues upstairs into the bedroom and is shot by Mrs. Cromwell. Then "Mrs. Cromwell throws the gun in the man's direction and rush past him out of the room. Camera tracks them as man chases her, razor rope in his hand." She runs from the house and is chased by the murderer, who catches her as she runs across the front lawn. "He overtakes her halfway to the gate, wraps the razor rope around her neck and kills her in the brilliant light of the spotlights..."

Later in the story the central character, Hamilton Cromwell, argues with his friend Joe:

HAMILTON: ... Let me tell you what I think! My parents died when I was eighteen. I was ignorant, young... JOE: You killed them! You killed them and froze them in your fucking ice cemetery. HAMILTON: That was ten years ago, you fucking asshole! Ten years. I was a teenager. I didn't understand. I thought they hated me. I didn't know. I changed. I had a new life. I started a business. I had friends, real friends, I even had a wife.

Later in the story, a character named Mike tells Hamilton Cromwell:

You're in the driver's seat, Hamilton. You're right. I was planning to kill you. You figured it all out. Do you want a medal or something. Yes, I wanted the money. Knocking off a stranger for a few hundred million...well, that's not such a big deal. I mean, it was nothing personal. But you are a lot slicker than I figured. I have to hand it to you. You killed your parents and you killed Jacoln and Fred and then, you crazy bastard, you froze them all and kept them like some king of trophies....

In the third screenplay (Attachment A-3), the central character is once again Hamilton Cromwell, who is once again introduced "flipping through the files" until he finds one entitled, "Cromwell Financial Status." "He sits down and lights a candle and the light reveals a book of the family's will titled 'Will and Testimony."' The will is identical to the will in the first screenplay:

To my beloved son Hamilton, a man I have respected and felt proud to father, I bestow the Cromwell estate, and the money in my Swiss account...one hundred fifty-seven million dollars and the pride of the family, the portrait of Oliver Cromwell.

Later he is described ascending the stairway to his parents' bedroom:

Camera halts at the fine brown leather boots climbing stairs with a razor rope dangling at his side. Razor rope-has a handle for gripping on each side which is connected by a thin razor sharp wire. Weapon designed to strangle. Holding the razor rope is a gloved hand. As the boots are shown reaching the pinnacle of the staircase a crack of light is exposed through the door of Hamilton's parents' bedroom suite. A gloved hand is seen gripping the doorknob and gently turning it. The door opens exposing the luxurious suite. Mr. and Mrs. Cromwell are lying in bed. Their faces are of questioning horror as Hamilton closes the door behind gently. Hamilton: (voice is attempted compassion but hatred completely overwhelms it) Good evening mother, good evening father. All light ejected from the bedroom is extinguished as the camera slides down the stairs. Screams are heard behind.

Later in the script two of the characters, Joe and Mike, are trying to determine if Hamilton is the razor killer. A room in the basement is described:

The room is made of ice. The floor, walls, and ceiling are all made of ice. The temperature in the room is somewhere in the teens. Enclosed in the wall of ice is Mr. Cromwell. Mike and Joe shine the light along the wall; Mrs. Cromwell--the names are engraved in red above their bodies--then continue along the wall.

It is clear that in all three screenplays Erik Menendez was contemplating scenarios in which parents are killed for financial gain. This demonstrates that he was not only contemplating such scenarios, whether in a fictional setting or not, before he murdered his own parents and benefited financially from their murders, but that he even continued to do so afterwards, at a time when he was allegedly in the throes of a horrible unplanned tragedy. His contemplation of such scenarios, and his persistence - even after he murdered his own parents, is strong circumstantial evidence of his motive and his state of mind before and after the murders of Kitty and Jose Menendez.

III THE ESCAPE PLANS DO NOT IMPLICATE ERIK MENENDEZ

1. NO REDACTION IS NECESSARY BECAUSE THE PLANS DO NOT SUGGEST THAT ERIK MENENDEZ WAS NECESSARILY INVOLVED IN THE PLAN

The escape plans (Attachments B-1 and B-2) do not incriminate Erik Menendez. Twelve of the thirteen pages do not make reference to Erik in any way. (See Attachment B-1). Only on one page (page 5) are there two references to "E & L," a notation which clearly refers to "Erik and Lyle."( See Attachment B- 2). Even then, however, the context is only that Erik and Lyle will need protection. It is not stated, or even implied, anywhere in the notes that Erik Menendez agreed to the plan, discussed the plan, or is even aware of the plan. Consequently, the Aranda-Bruton rule does not apply and the unredacted notes as they appear in Attachment B-1 should be received into evidence against Lyle Menendez accompanied by an instruction limiting them to him.

2. THE PLANS COULD BE REDACTED, IF NECESSARY, TO ELIMINATE REFERENCES TO ERIK MENENDEZ WITHOUT PREJUDICE TO LYLE MENENDEZ

If the court feels, out of an overabundance of caution, that the People should nonetheless redact these plans to eliminate any reference to "E," this can easily be done by simply removing the letter E from the two places in which "E + L" appear in the escape plans. This would not prejudice Lyle Menendez in any way.

3. THE PLANS ARE ADMISSIBLE TO PROVE CONSCIOUSNESS OF GUILT

In his "SUPPLEMENTAL BRIEF BY DEFENDANT JOSEPH LYLE MENENDEZ RE PEOPLE'S PROFFER OF EVIDENCE TO BE PRESENTED BEFORE A SINGLE JURY," the public defender claims that after the California Supreme Court noted in People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10, that evidence of flight is relevant even where the defendant admits to some or all of the charged conduct, that court "took the opposite position" a year later in People v. Nicolaus (1991) 54 Cal. 3d 551, 579. This is an absolute falsehood and a blatant misrepresentation of Nicolaus.

In Nicolaus, the California Supreme Court once again held that the jury was properly instructed that consciousness of guilt may be inferred from flight even where, as in that case, the defendant admitted to the criminal act and only contested his state of mind at the time of the commission of the crime! Despite the clear holding of this case, the public defender attempts to argue that flight is not relevant by taking a single sentence out of context.

In Nicolaus the defendant reiterated an argument that first appeared in People v. Crandell (1988) 46 Cal.3d 833, 871. It was argued that the phrase "consciousness of guilt" as that phrase appears in the jury instruction, could mislead the jury because they might confuse the psychological meaning of the word "guilt" with the legal meaning of that word. If, the argument goes, the jury were to mistakenly interpret the word as referring to "guilty of the charged offenses" ( the legal meaning of the word "guilt"), rather than correctly realizing that the word refers to "guilty of wrongdoing" (the psychological meaning of the word "guilt"), then the jury might regard the instruction as tantamount to suggesting that evidence admissible to show consciousness of guilt has the weight of a confession because it is evidence that the defendant, by his actions, was conceding that he is guilty as charged.

The Supreme Court explained in both Nicolaus and Crandell that a reasonable jury would not misinterpret the word in this way. It was only in this context that the Supreme Court noted (in regard to the instructions concerning flight, not the evidence concerning flight), that "The instructions do not address the defendant's mental state at the time of the offense." What the Supreme Court meant by this phrase was simply that the word "guilt," as that word appears in the instructions. refers to the defendant's consciousness of wrongdoing after the crime, rather than the mental state which the prosecution alleges to have existed at the time of the crime. The Supreme Court was not suggesting, as the public defender would have us believe, that evidence of flight is not relevant to a consciousness of wrongdoing. To the contrary, the holding of both Nicolaus and Crandell was that such evidence is relevant and admissible for that very reason!

The public defender next argues that the evidence should be excluded under Evidence Code section 352 because the defendant never took any steps to effectuate the plans. Actual implementation of the plans is not a prerequisite to its relevance. The fact that the defendant took the time and effort to formulate written escape plans is just as indicative of his intent to avoid trial as would be an actual physical attempt to escape. People v. Otis (1959) 174 Cal. App. 2d 119, 128, [hacksaw blades found in defendant's cell while awaiting trial establishes intent to escape which is relevant to consciousness of guilt]; People v. Burwell (1955) 44 Cal. 2d 16, 34 [letter regarding plans to escape from jail properly admitted to show consciousness of guilt].

The public defender next argues that the evidence should be excluded under Evidence Code section 352 because it does not truly amount to a "plan." A careful examination of the document reveals that it contains everything except the words "This is what I intend to do." It includes a consideration of the physical means by which the defendant will escape from the facility (a drawing of the front and side views of a device that can be attached to bars to assist his escape), the placement of the vehicle which will take him to safety ( a drawing of where his Porsche should be relative to his point of escape), possible destinations, routes, the physical means by which he could get to those destinations (vehicle v. airplane), the issue of extradition, what the costs of the escape will entail, the financing for the escape, visas or passports (in ,different names), the need for weapons (silencers), money and security, safe houses to hide in prior to destination points, persons who could provide some assistance, changes of appearance and identities, the efforts that will be made to search for him, the path of "least likely pursuit," who else already has information about the escape plans (indicating that he has already discussed this plan with others) and who else will learn about some aspect of the plan, future financial security, whether he will be able to own. businesses, whether he could blend into the culture in which he chooses to live, issues of language, the period of time that he may have to remain in that culture, and last but not least, how his girlfriend fits in. If this does not reflect a plan, it is difficult to imagine how much more concrete the defendant would have to be to indicate that he is planning an escape.

Finally, the public defender argues that the evidence should be excluded because the defendant may have wanted to escape from custody for a reason other than out of a consciousness of guilt. This is a question for the jury to decide. Abundant case law provides that the mere fact that the defendant may have an explanation for his desire to escape other than a consciousness of guilt does not preclude the prosecution from presenting such evidence. People v. Hutchinson (1969) 71 Cal.2d 342, People v. Burres (1980) 101 Cal.App.3d 341.

IV. REDACTION OF CRAIG CIGNARELLI'S STATEMENTS DOES NOT PREJUDICE ERIK MENENDEZ

As to Erik Menendez's confession to Craig Cignarelli, (See Attachment C-1 and C- 2), the People maintain that the defense has not shown that the statements cannot be redacted to comply with existing case law. In their written and oral argument, the defense seeks to avoid the application of Richardson v. Marsh (1987) 481 U.S. 200, and People v. Mitchum (1992) 1 Cal.4th 1027, both of which provide for the admissibility of redacted statements of co-defendants which delete all references to the non-declarant defendant, by simply citing pre-1987 rules which predate these rulings. Thus, the defense relies heavily on the 1967 cases of People v. Massie and People v. Lara, the 1968 cases of People v. Matola and People of Barrett, and the 1975 case of People v. Tealer. The People ask the court to rule in accordance with Richardson v. Marsh and People v. Mitchum which reflects the state of the law today.

The defendants argue that the analysis required by Richardson v. Marsh is not a simple inquiry into whether the statements are facially incriminating. In support of this proposition the defendant cites the following language:

If limited to facially incriminating confessions, Bruton can be complied with by redaction - a possibility suggested in that opinion itself ... If extended to confessions incriminating by connection, not only is that not possible, but it is not even possible to predict the admissibility of a confession in advance Marsh (1987) 481 U.S. 200, 209. of trial. Richardson v. Marsh (1987) 481 U.S. 200, 209.

The defendant misconstrues the point being made here. The court was not saying that a trial court must evaluate the fairness of redaction in light of all evidence to be produced at trial. The court was saying the exact opposite: one of the reasons why Bruton cannot be extended beyond facially incriminating confessions is because of the practical impossibility of evaluating, in advance, the incriminating nature of a statement when viewed in connection with other evidence to be presented later at trial. Thus the court held that only facially incriminating confessions violate Bruton saying, at 211:

[T]he Confrontation Clause is not violated by the admission of a non testifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.

The defendant next argues that even if the statements are successfully redacted, such evidence would still be prejudicial to the non-declarant because the defendants are brothers who have told the police they were together at the time of the crime. But again, non-facially incriminating statements such as those do not raise Bruton concerns.

Next, the defendant argues that Richardson involved a single extra judicial statement which was incriminating once it was connected with other evidence, while here the evidence involves many such statements.This simply is not true. This case actually involves only one confession, made by Erik Menendez to Craig Cignarelli. Nevertheless, the test would be the same whether the case involved one statement or multiple statements: i.e., are the statements facially incriminating? If the statements are not facially incriminating, Bruton is not violated. There is no authority to the contrary and none is offered.

Next, the defendants argue the following:

Richardson has not been read as narrowly as the prosecution suggests to this court. For example, in United States v. Briscoe 896 F.2d 1476, 1502 (7th Cir. 1990) the seventh circuit read Richardson as holding that a Confrontation Clause violation is established whenever a defendant "is directly implicated in a non-testifying codefendant's confession by being specifically identified or by being the only other participant in the charged crime." (See Erik Menendez Response, page 17, lines 4-9.)

In point of fact, this is not what was said by the court in Briscoe. The exact holding of the court was as follows:

In Richardson, a case in which the Supreme Court upheld the admission of a non testifying codefendant's confession because the petitioner was not identified therein (cite omitted) the Court refused to express an opinion on the admissibility of a redacted confession in which the defendant's name has been substituted with a neutral pronoun. Similarly, we refuse to expand the scope of the Bruton rule to situations where the defendant alleging a Confrontation Clause violation thereunder is not directly implicated in the non testifying codefendant's confession by being specifically identified or by being the only other participant in the charged crime. Briscoe at 1502. (emphasis added).

Not only did counsel distort the holding of Briscoe but they misquoted Briscoe to support their position. Furthermore, counsel cited the court to U.S. v. Van Hemelrych 945 F.2d 1493 (11th Cir. 1991) and U.S. v. Washington 95 2F.2d 1402, 1406-1407 (D.C. Cir. 1992) as support for their distortion of the holding in Briscoe. What counsel failed to mention was that Van Hemelrych was a case in which a non-neutral pronoun was used in a redaction with no limiting instruction. This is not what the People are proposing in this case. In Washington. the court stated that Richardson could be expanded to say that a neutral pronoun can be used to redact a statement if given with a limiting instruction.

The defendant goes through a line-by-line review of the People's proposed redaction of the Craig Cignarelli statement in an effort to show how redaction is unfeasible (See Erik Menendez's Response, page 18). This exercise illustrates just the opposite: that the defendant would not be prejudiced by redactions. He argues that his role in the killing would be "grossly distorted" by deleting such things as the fact that Lyle had two shotguns and said "lets do it" (Erik Menendez Response, page 19, line 7), or that Lyle said "shoot mom" after shooting Jose Menendez (Erik Menendez Response, page 19, line 7). Such deletions do not inflate the defendant's role in the murder, particularly when viewed in light of other evidence and argument which will make it clear to the jury that the People are not suggesting that the defendant committed the crime by himself. It is of no import that the defendant was handed a shotgun rather than having picked up a shotgun by himself. Nor does it matter that Lyle Menendez gave instructions to Erik Menendez. Erik Menendez acted of his own free will at all times. No prejudice can possibly be shown, and none has been shown.

V BOTH UNREDACTED AND REDACTED VERSIONS OF THE SEPTEMBER 17 STATEMENTS ARE ADMISSIBLE

1. THE UNREDACTED STATEMENTS DO NOT INCRIMINATE THE NON-DECLARANT

It is the position of the People that because neither defendant criminally implicated his co-defendant in the September 17, 1989 interviews, the statements are not incriminating to the non-declarant co-defendant, and their admission would not violate the Aranda-Bruton rule. In that regard these statements are no different than the statement of Erik Menendez on August 20 which the court allowed into evidence before both juries in the first trial despite the fact that the defendant made reference to Lyle Menendez in that statement. We ask the court to rule consistently with that previous ruling, and find that the September 17 statements, like the August 20 statements, are admissible before both juries because they do not criminally implicate the non-declarant.

Nevertheless, because the court specifically requested that we submit redacted versions of the statements for the court's consideration, the People have provided the court with unredacted statements marked to indicate proposed redactions in Attachments D and E.

2. USE OF THE REDACTED STATEMENT WOULD NOT PREJUDICE THE DECLARANT

As reflected in Attachments D and E, both statements can be redacted to exclude reference to the non-declarant without prejudice to the declarant.

VI THE TESTIMONY OF BRIAN ANDERSEN IS ADMISSIBLE BEFORE A SINGLE JURY

In the first trial, Brian Andersen testified, before the Lyle Menendez jury only, to conversation with Jose Menendez, in which he questioned Jose Menendez about an incident he had witnessed between Erik Menendez and Kitty Menendez concerning a camcorder. Jose Menendez told Brian Andersen, "Well, I've got to have a major conversation with my son, Lyle. He has got to get the message that we're not going to be supporting them the rest of their lives." (See volume 132, page 22874, lines 14-19.) In a 402 hearing held prior to the admission of this testimony, the People argued that the statement was admissible under Evidence Code Section 1250: (a) Subject to 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent plan, motive, design, mental feeling pain. or bodily health) is not made inadmissible by the hearsay rule when:

(1) The evidence is offered to prove the declarant's state of mind, emotion. or physical sensation at that time or at any other time when it is itself an issue in the action; or

(2) The evidence is offered to prove or explain acts or conduct of the declarant. (Emphasis added)

The court agreed, and ruled that the statement was admissible to show Jose Menendez's intent to have such a conversation. (See Volume 130, page 22543, lines 21- 26; and page 22544, lines 18-24; page 22545, lines 12-19; page 22546, lines 23-27; and page 225477, lines 5-7). (See also People v. Rowland 4 Cal. 4th 238, 263-264, a case in which a rape victim's statement to a friend that she was going home because she had a headache was admissible to show state of mind (intent) and was relevant to refute the defense of consent.) The incident concerning the camcorder and the statement in question would be admissible once again even in a single jury trial, with the statement, accompanied by limiting instruction, being offered only against Lyle Menendez.

VII THE TESTIMONY OF MARK SLOTKIN IS ADMISSIBLE BEFORE A SINGLE JURY

Mark Slotkin said he spoke to the defendants approximately 50 to 100 times after their arrest, the last time being approximately February or March of 1994. (See Attachment F-1, consisting of a report by Detective Les Zoeller and Attachment F-2, handwritten notes of DDA Najera, taken on March 30, 1994, which has been provided to the defense). The following statements are key statements that the prosecution seeks to present before a single jury, and which arguably raise single jury issues.

Mr. Slotkin said that he spoke to Erik Menendez about not appearing sad or remorseful about the murders. It was in connection with this remark that Erik Menendez told him, "We made a mistake at the original arraignment, and we're going to do better at that." (Detective Zoeller's report incorrectly attributes this remark to Lyle Menendez. Page 4 of DDA Najera's notes correctly attribute this remark to Erik Menendez.) To avoid an Aranda-Bruton problem, the People will redact the statement so that it reads in the first- person singular, rather than the first-person plural, a modification that will not prejudice the declarant.

After the arrests, Slotkin would play devil's advocate and try out defenses with the defendants. He said that he could not understand why they did not use the confrontation between Jose and Craig Cignarelli in which Jose threatened to kill Craig. He explained to the defendants that he thought a good defense would be to say that Erik Menendez thought that his father was going to kill him because he was jealous of a homosexual relationship between Erik and Craig. Erik said that using that defense would be hard, and that Craig would deny it.

Mr. Slotkin said that he once spent an hour to an hour and one half discussing possible defenses with Erik Menendez. The defendant would sometimes tell him, "That's a good point, I'll bring it up with my lawyer." In a later conversation, Mr. Slotkin asked him, "Why would she be filling out college applications, if she was planning to kill you? How are you going to get out of that? Killing Kitty?" Erik Menendez responded, "Well that's a problem, but we're working on that." (Detective Zoeller's report fails to specify which of the two defendants made this remark. In fact Mr. Slotkin attributed this remark to Erik Menendez.) This conversations is admissible in a joint trial against Erik Menendez, accompanied by a limiting instruction. The words "we're working on that" do not implicate Lyle Menendez.

VIII THE TRACY BAKER LETTER IS ADMISSIBLE BEFORE A SINGLE JURY

1. THE TESTIMONY OF ERIK MENENDEZ MAY NOT BE PUT INTO EVIDENCE EXCEPT BY THE PROSECUTION.

Counsel for Erik Menendez argued that the Tracy Baker letter [FN1] (See Attachment G), should not be admitted in the trial. It is a letter written by Lyle Menendez in which he solicits perjury from Tracy Baker by asking Tracy Baker to invent an incident in which Kitty Menendez seemingly tried to poison the family. It is the contention of the People that Ms. Baker later perjured herself by testifying to this incident at Lyle Menendez's request, and that Erik Menendez also testified to the same lie as Tracy Baker. Counsel for Erik Menendez argues that if the Tracy Baker letter were admitted into evidence, Erik Menendez would be prejudiced after the jury learns that he lied about the incident, because he would be denied the right to confront Lyle Menendez about the letter. What this argument fails to address is how the prior testimony of Erik Menendez would come before the jury. If the People did not elect to put his former testimony into evidence, the defendants could not offer any part of his testimony. In that case, the issue would not arise during the People's case-in-chief.

Nor would the issue arise when Lyle Menendez presents his evidence, because one defendant may not present the testimony of another defendant. Such testimony does not come under the former testimony exception to the hearsay rule because even though Erik Menendez is unavailable to Lyle Menendez to be called as a witness, such testimony could not be offered "against" the party who originally presented the evidence (Erik Menendez), because It would actually be offered "against" the People. Offering the evidence against the People would not meet the requirements of the Evidence Code. Defendants may not conspire to present each others testimony in a retrial through the pretext of offering such testimony "against" each other and thereby deny the prosecution the right to cross-examine them.

2. IF ERIK MENENDEZ ELECTS TO TESTIFY, THE STATEMENT OF LYLE MENENDEZ WOULD BE ADMISSIBLE AGAINST HIM AS A DECLARATION AGAINST PENAL INTEREST.

If the prosecution did not present the former testimony of Erik Menendez, the only way that the claim of Erik Menendez that the incident actually took place would be if he were to take the stand and testify to it. Only then would the previously-admitted letter, a hearsay document, implicate the defendant. Yet even then, there would be no prejudice to Erik Menendez, because the letter would be admissible against him as a declaration against Lyle's penal interest under Evidence Code Section 1230, which allows for hearsay declarations to be admitted against declarants and non-declarants alike because of the inherent reliability of declarations against penal interest. That section provides for the admission of such a statement when:

the declarant is unavailable as a witness and the statement, when made... so far subjected him to the risk of... criminal liability... or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community... that a reasonable man in his position would not have made the statement unless he believed it to be true.

In the letter, (dated prior to the testimony of Tracy Baker, and proven to be written by Lyle Menendez through expert handwriting analysis), Lyle Menendez writes that he wants Tracy to testify to being present at a dinner in which it appeared that his mother tried to poison the family. Lyle says that "We will decide later around what date this incident occurred." He tells her not only that to which she should testify, but also tells her that while she can take notes in her own handwriting in regard to the information contained in the letter, she should throw the letter away. "Do that right away so you don't forget." The only reasonable conclusion to be drawn from the remarks contained in the letter is that Lyle is attempting to persuade Tracy Baker to testify in regard to an incident which did not occur. Although it is hearsay, it is a declaration against interest as to Lyle Menendez because the statement "so far subjected him to the risk of... criminal liability... or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community... that a reasonable man in his position would not have made the statement unless he believed it to be true," (the "true statement" being that he wants her to testify that the incident actually took place).

Statements against penal interest are admissible against declarants and non- declarants alike. In People v. Gordon (1990) 50 Cal. 3d 1223, 1248-1254, a statement made by the defendant's uncle was held to be a declaration against penal interest. The uncle invoked the Fifth Amendment when he was called to testify and was found to be unavailable. The trial court correctly admitted the uncle's statement into evidence against the defendant.

Hearsay statements may not be admitted, however, if their introduction would violate the Confrontation Clause of the United States Constitution. This concern in addressed in Evidence Code section 1204:

A statement that is otherwise admissible as hearsay is inadmissible against the defendant in a criminal action if the statement was made, either by the defendant or by another, under such circumstances that it is inadmissible against the defendant under the Constitution of the United States or the State of California.

The United States Supreme Court has held, however, that the Confrontation Clause is satisfied if the statement falls within a "firmly rooted hearsay exception," to the hearsay rule, and it has also held that hearsay exceptions which demonstrate a high indicia of reliability are "firmly rooted exceptions." The California declaration against penal interest exception to the hearsay rule is a "firmly rooted exception" to the hearsay rule. People v. Wilson (1993) 17 Cal. App. 4th 271. In Wilson hearsay statements of the defendant's wife made to police officers were admitted against defendant as declarations against his wife's penal interest after his wife refused to testify, invoking the marital privilege. On appeal:

Appellant also contends that even if Mrs. Wilson's statements were admissible as declarations against her penal interest, their admission violated his right to confront the witness against him. We find no violation. When testimony, although hearsay, has 'sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.' Wilson at 277, citing White v. Illinois (1992) 502 U.S. _ [116 L.Ed.2d 848, 859, 112 S.Ct. 736, 743]; People v. Clark (1992) 3 Cal.4th 41.

The court concluded:

Evidence Code section 1230 the hearsay exception at issue here is also firmly rooted in the law. (Citations omitted) The same facts that rendered Mrs. Wilson's statements admissible under our Evidence Code provide indicia of reliability sufficient to satisfy the confrontation clause, and under White and Clark, there was no violation of constitutional rights. As the United Supreme Court noted, hearsay rules and the confrontation clause are generally designed to protect similar values, and stem from the same roots. (Bourjaily v. United States (1987) 483 U.S. 171, 183 [97 L.Ed.2d 144, 157- 158, 107 S.Ct. 2775].) It is thus not surprising that evidence admissible under the hearsay rules is free of confrontation clause error. Wilson at 278. (emphasis added).

IX THE ATTEMPTED PURCHASE OF PROPERTY BY ERIK MENENDEZ IS ADMISSIBLE BEFORE A SINGLE JURY

As the report provided in attachment I indicates, in approximately February of 1990 Erik Menendez made an offer on a home in the Marina Del Rey area that was listed for $1,495,000. He offered $1,100,000 for the property and the owners wrote a counter offer of $1,350,000. After he learned of the arrest of the defendant, real estate agent Larry Cohen never informed Erik Menendez of the counter offer and the deal fell through.

This attempted purchase should be admitted into evidence against Erik Menendez in a joint trial conducted before a single jury. Accompanied by a limiting instruction which provides "Purchases and attempted purchases by a defendant may be considered only against the defendant making the purchase or attempted purchase," all evidence of purchases and attempted purchases by Erik Menendez will be considered against him only, and all evidence of purchases and attempted purchases by Lyle Menendez will be considered against Lyle Menendez only.

X THE NUMBER OF LIMITING INSTRUCTIONS IS IRRELEVANT

In oral argument, the defense suggested, without citation to authority, that the jury would be incapable of following multiple limiting instructions. Instead, in their written response, the defense cite four federal cases in which it was later ruled that it was unreasonable to ask the jury to disregard the information that was presented to them, even though such information was accompanied by a limiting instruction. But the important distinction that runs through every case cited by the defendants, is that in all cases cited, the information which the jury was asked to disregard was highly incrimination information about the defendant himself not the co- defendant! Thus was the situation in: United States v. Miller [evidence concerning the defendant's polygraph examination erroneously admitted]; United States v. Bland [where jury erroneously learned of an arrest warrant for three homicides issued against the defendant, including one involving the torture-murder of a seven year-old girl]; United States v. Gillespie [where jury was unnecessarily informed of the defendant's homosexuality]; United States v. Prescott, [also involving inadmissible evidence concerning the defendant herself that had been erroneously admitted].

Here, in contrast, we are proposing limiting instructions that would advise a jury not to consider the statements or behavior of a co-defendant as they assess the guilt of the defendant. The People will not be asking the jury to disregard highly incriminating information about the defendant himself, as was the case in every cases cited by the defendant. What the People are proposing is not only expressly sanctioned by Evidence Code Section 355, but is routinely done in all multiple defendant trials.

XI CONCLUSION

For the foregoing reasons, the People request that this court admit the evidence we seek to present before a single jury with appropriate redactions, if necessary, accompanied by limiting instructions.

Respectfully submitted this 18th day of January, 1995

David P. Conn
Carol Najera

END NOTES

1 For the history of the "Tracy Baker letter" including an explanation of the timing and origin of its discovery see Attachment "H".

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