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Lyle Menendez' Supplemental Brief Re People's Proffer of Evidence
LAW OFFICES OF THE PUBLIC DEFENDER
CHARLES GESSLER, Deputy Public Defender, #32144
TERRI TOWERY, Deputy Public Defender, #94453
210 W. Temple Street, 19th Floor
Los Angeles, CA 90012
Telephone: (213) 974-2804
Attorneys for Defendant
JOSEPH LYLE MENENDEZ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
THE PEOPLE OF THE STATE No. BA068880
ERIK GALEN MENENDEZ and
JOSEPH LYLE MENENDEZ,
SUPPLEMENTAL BRIEF BY DEFENDANT JOSEPH LYLE MENENDEZ RE PEOPLE'S PROFFER OF EVIDENCE TO BE PRESENTED BEFORE A SINGLE JURY
TO GIL GARCETTI, DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES, AND/OR HIS REPRESENTATIVE, AND TO THE ABOVE-ENTITLED COURT:
Pursuant to the Court's comments at the December 19, 1994 hearing on the People's Proffer of Evidence to be Presented Before a Single Jury ("Proffer"), defendant Joseph Lyle Menendez ("Lyle Menendez") submits the following supplemental brief respecting certain pieces of evidence identified in the Proffer which the prosecution seeks to admit against him.
Dated this 13th day of January, 1995.
SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO PEOPLE'S PROFFER OF EVIDENCE
At the hearings on the prosecution's Proffer on December 19 and 20, 1994, the Court entertained argument regarding the admissibility of all items of evidence contained in the Proffer. At the hearing, the parties were to assume that the evidence would be offered before a single jury, even though such determination had not been made by the Court at that time.
Counsel for Lyle Menendez indicated to the Court that, because the Proffer was originally presented to assist the prosecution in its determination as to whether to seek a single or separate trials for the Menendez brothers, Lyle Menendez had addressed in writing only those portions of the Proffer dealing with the issues of cross- admissibility in a single trial. Thus, items of evidence which were presented before the jury for Lyle Menendez at the last trial were not addressed in the Response by Joseph Lyle Menendez to People's Proffer of Evidence to be Presented Before a Single Jury filed June 13, 1994 ("Response"). The Court indicated that any supplemental arguments which the parties wished to raise could be submitted in written form.
The purpose of this memorandum is to amplify the argument set forth in the Response respecting the so called "escape plans" seized from the cell of Lyle Menendez in the summer of 1990, and to reiterate certain objections previously made with respect to other evidence offered against Lyle Menendez not briefed in the Response.
THE COURT'S ORIGINAL RULING WAS CORRECT AND THE SO CALLED "ESCAPE PLANS" SHOULD NOT BE ADMITTED IN THE SECOND TRIAL
Prior to the first trial of Lyle Menendez, the prosecution on March 15, 1993 filed a Motion to Admit Evidence. On April 20, 1993 Lyle Menendez the filed his Response to Prosecution Motion to Admit Evidence("April 20, 1993 brief"). Both the prosecution and defense documents were filed under seal. A copy of Lyle Menendez's April 20, 1993 brief (along with a similar response by Erik Galen Menendez) was lodged with the Court at the time his Response was filed on June 13, 1994 [FN1].
At the first trial the Court excluded the so called "escape plans" from admission before Lyle Menendez's jury [FN2]. However, certain of the arguments made in the April 20, 1993 brief and orally by former counsel for Lyle Menendez were referred to by the Court at the recent hearing. Specifically, the Court cited the case of People v. Turner (1990) 50 Cal. 3d 668, 694 n. 10, as potentially supporting the admission of the so called "escape plans" in the next trial.
Upon review of the language cited in Turner, it appears that the Supreme Court did state in dicta:
"Guilty flight may be relevant not only where the identity of the perpetrator is at issue, but also where the accused admits some or all of the charged conduct, merely disputing its criminal implications. (Citations omitted). Defendant admitted killing Savage, but the defense and prosecution differed sharply on the circumstances. The prosecution theorized that defendant intended to murder and rob the victim. Defendant claimed an unintentional killing in self -defense and also denied an intent to steal. Under these circumstances, the prosecution was entitled to use evidence of guilty flight to help prove defendant's criminal state of mind." Id. (Emphasis added).
The following year, however, the California Supreme Court had occasion to consider the same question, i.e. the relevance of the flight instruction in a homicide case where the contested issue was not identity, but the state of mind of the defendant at the time of the killing, and took the opposite position. In People v. Nicolaus (1991) 54 Cal. 3d 551, 579. the Court stated:
"Like the instruction on false or deliberately misleading statements, the flight instruction '[does] not address the defendant's mental state at the time of the offense and [does] not direct or compel the drawing of impermissible inferences in regard thereto.'" (Citation omitted). Id. (Emphasis added).
It was argued previously that, because identity was (and will be) conceded by Lyle Menendez, the sole issue for the jury to determine is his mental state at the time of the killings. Since the most recent proclamation by the Supreme Court is that flight does not address this issue, the evidence itself has no relevance in this upcoming trial.
In addition, even assuming some marginal relevancy, the evidence should be excluded under Evidence Code 352. Although labeled the "escape plans In numerous briefs and arguments of the parties, in fact the documents in question are far from a realistic "plan." They are not even a single cohesive document. Some of the pages seem to be simply scribbles of thoughts or lists. Others perhaps are notes to or about other inmates of some local notoriety. To the extent the papers do seem to indicate some type of ruminations of travel from the jail, they can hardly be described as "plans." The geographical destinations range from San Diego to Lebanon, from Columbia to France, and include Canada, London, Mexico, and Belgium. An "escape" through all of those locations would be challenging, to say the least.
Additional pages of the supposed "escape plans" are simply lists of given names, some of which are the same as those of some attorneys or witnesses in the case, and have no apparent connection to the other pages. The danger that the jury will misconstrue the meaning of. or invent reasons for, the existence of such names when offered in connection with other pages and described as a single document is obvious.
These disorganized and fantastical notes misnomered as "plans" are, as previously argued, nothing more than "rumination on the concept of escape." The prosecution has no evidence that Lyle Menendez actually took 'any steps toward actually attempting an escape. The complete absence of any actus reus reduces the pages removed from Lyle's cell merely to "wishful thinking" at the most. However, references to a "silencer" and the overall crime of escape could lead a jury to wrongfully use the documents "bad character" and "other crimes" evidence. (See Evidence Code 1101). The potential for misuse of the evidence and prejudice to the defendant far outweighs the minimal, if any, probative value.
Finally, the so called "seventeen page letter" seized from the cell of Erik Menendez at the same time the "escape plans" were seized makes it clear that such possible thoughts of escape related not to consciousness of guilt, but to an overwhelming desire on the part of Lyle Menendez not to reveal to the world the secrets of his family. He wrote to Erik in the letter seized less than three months after his arrest:
"We alone know the truth - we alone know the secrets of our families (sic) past. I do not look forward to broadcasting them around the country. I pray that it never has to happen. If it were not for you I doubt I would even try for manslaughter. I would rather try and escape or die. I struggle with my belief that men take responsibility for their actions, pleading abuse is not taking responsibility...." This elaboration on the so called "escape plans" makes it clear that any escape fantasies by Lyle Menendez related to his desire to avoid the shame of revealing the truth, and not to a consciousness of guilt or to his mental state at the time of the killings. The Court's determination that the so called "escape plans" were inadmissible in the last trial before Lyle Menendez's jury alone was the correct decision, and such proffered evidence should again be excluded in the upcoming trial.
III. THE COURT SHOULD REVIEW ITS RULINGS RESPECTING THE PREVIOUS ADMISSION OF ADDITIONAL EVIDENCE BEFORE THE LYLE MENENDEZ JURY
At the December 19, 1994 hearing, the Court also indicated its view that it was not bound by its prior rulings in this case, and its potential willingness to reconsider such rulings in connection with the retrial. In this regard, defendant requests that the Court reconsider the arguments by Lyle Menendez in his April 20, 1993 brief, in all additional briefs filed with the Court, and all oral arguments previously made respecting the Proffer of evidence respecting the admissibility of certain testimony by Howard Witkin, Donovan Goodreau, Richard Wenskowski, Glenn Stevens, Jamie Pisarcik, Brian Anderson, and Marlene Eisenberg [FN3].
Defendant Lyle Menendez respectfully requests that the Court consider this supplemental brief in connection with its ultimate rulings on the Proffer, and exclude the Proffered evidence as requested herein.
MICHAEL P. JUDGE, PUBLIC DEFENDER
Charles Gessler, Deputy Public Defender
Terri Towery Deputy Public Defender
[Signed by Terri Towery]
Attorneys for Defendant Joseph Lyle Menendez
1 Again, for the Court's convenience a copy of the April 20, 1993 brief is lodged herewith, and its arguments again incorporated by reference.
2 A copy of the written materials the prosecution seeks to introduce is attached hereto as Exhibit "A." Such exhibit is identical to Exhibit "P" to the prosecution's Proffer.
3 All of such arguments and objections are renewed and incorporated by reference as though fully set forth herein.
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