SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
CASE NO. BA068880
PEOPLE OF THE STATE OF CALIFORNIA,
ERIK GALEN MENENDEZ and
JOSEPH LYLE MENENDEZ,
DEFENDANTS MOTION IN LIMINE RE RECENTLY PROFFERED SPENDING EVIDENCE
DATE: JUNE 26, 1995
DEPT.: NORTHWEST "N"
TIME: 9:00 A.M.
TO: GILL GARCETTI, DISTRICT ATTORNEY FOR LOS ANGELES COUNTY AND HIS
REPRESENTATIVES, DAVID CONN AND CAROL NAJERA AND TO THE ABOVE-ENTITLED
PLEASE TAKE NOTICE that on June 26, 1995, at 9:00 a.m., or as soon
thereafter as counsel may be heard in Department Northwest "N" of the
above-entitled court, defendants Erik Galen Menendez and Joseph Lyle
Menendez will move this Court for an order prohibiting the prosecution
from introducing additional so-called "spending" evidence on the grounds
that the proffered evidence is irrelevant, or, if marginally relevant,
its probative value is substantially outweighed by the probability that
its admission will necessitate undue consumption of time or create
substantial danger of undue prejudice, or of confusing the issues and of
misleading the jury.
Further, the proffered evidence is inadmissible because the prosecution
has failed to demonstrate the existence of the foundational facts
necessary to qualify most of this newly offered evidence as, in fact,
evidence of spending by the defendants. As specified below for most of
this evidence there is no information in the discovery provided of the
dates, amounts and sources of the expenditures that the people seek to
admit in vague support of their theory that the defendants killed their
parents in order to spend their parents' money.
The motion will be based upon pleadings, records and files herein, upon
the previous testimony of witnesses addressed to these evidentiary
issues, upon the written statements of witnesses provided to the defense
by the prosecution in the course of pretrial discovery and upon the
written statements of witness provided to the defense by the prosecution
in the course of pretrial discovery and upon such other and further
evidence and arguments as may be presented by defendants at the hearing
of the motion.
Dated this 9th day of June, 1995
LESLIE H. ABRAMSON, A Law Corporation
By: /s/Leslie H. Abramson, Attorney for Erik Galen Menendez
MICHAEL P. JUDGE, PUBLIC DEFENDER
Charles Gessler, Deputy Public Defender
By /s/ Terri Towery, Attorney for Joseph Lyle Menendez
MEMORANDUM OF POINTS AND AUTHORITIES
In letters to defense counsel dated April 26, 1995 and May 5, 1995, the
prosecution gave notice of its intention to introduce in it's case in
chief information characterized as additional "spending evidence".
(Copies of those letters are attached hereto as Exhibits A1 and A2,
In numerous previous hearings in this case the prosecution has asserted
the relevancy of evidence of the defendants' receipt of funds as a direct
result of the death of their parents such as the proceeds of the Sun Life
Insurance policy, and the advance from the parents' estates given to
Lyle, as evidence of motive. In addition, the prosecution has been
granted permission from this Court to introduce evidence of the
defendants' actual spending or offers to spend specific large sums of
money following the death of their parents as further evidence in support
of their motive theory even though this sort of evidence is obviously of
a more speculative kind depending, as it does, upon the notion that had
they not killed their parents but merely received the insurance proceeds
or inherited money from the estates they would not have spent it.
Now the prosecution, seeking to shore up its motive theory, wishes to
introduce evidence of various activities of the defendants, the cost of
which are apparently unknown, under this ever growing and increasingly
amorphous category of "spending evidence".
Additionally, the prosecution should not be permitted to use the same
evidence twice to create a false impression of the existence of a large
quantity of circumstantial motive evidence. As the record of the first
trial demonstrates, there is, in fact, no direct evidence of motive at
all. The circumstantial evidence relied upon by the prosecution to
establish its financial gain motive was of two kinds. First, that each
defendant received money as a consequence of their parents' deaths in the
form of proceeds from their father's life insurance policy and, with
respect to Lyle Menendez only, as an advance distribution from the
estates of his parents with which to purchase a restaurant. The second
type of circumstational evidence of motive was that the defendants spent
or offered to spend large sums of money between September 1989 and
February 1990. The court permitted introduction of evidence on a large
number of expenditures on items ranging from Lyle's purchase of a
restaurant to Erik's purchase of a pool table.
Since evidence at trial indicated that the estates of Jose and Mary
Louise Menendez were still pending distribution at the time of the
defendants' arrest, the only source of funds for all but the restaurant
purchase was the insurance proceeds. Thus, the prosecution was permitted
extensive use of double counted evidence of both the receipt of funds and
the expenditure of the same funds by the defendants. In addition, the
prosecution was permitted in the first trial to prove against Erik (since
ruled admissible against Lyle as well) an aborted offer to purchase a
condominium at the Marina City Club. Further, the Court has recently
ruled that it will permit the prosecution to prove against Erik in the
upcoming trial a February 1990 aborted offer to purchase a house in
Marina Del Rey. Presumably these semi-spending activities were permitted
because they arguably speak to the defendants' states of mind vis a vis
their potential inheritance of the proceeds of their parents; estates.
Interpreted thus they do not constitute further double dipping of the
insurance proceeds evidence especially since if these purchases had been
made, they would have exceeded the sums obtained from Sun Life. However,
with the exception of the previously ruled inadmissible item #1, the
balance of the items on the prosecution's recently submitted list
consists of cumulative evidence of further and increasingly petty
expenditures of presumably, the insurance money. Unlike the previously
admitted evidence of this type, however, the people have demonstrated
little factual support by way of dates, amounts and actual payments by
the defendants for these items.
Even with specific facts of large expenditures this type of evidence is
only marginally probative at best. One would expect young men raised by
financially liberal parents but unaccustomed to managing their own
affairs to spend rather loosely after coming into possession of a large
sum of money whether they obtained that money by fair means or foul.
There has already been more than enough latitude given to the prosecution
to bootstrap both the receipt of funds and their expenditure to convey
the false and misleading impression to the jury of the existence of a
large quantity of financial gain evidence when in fact there are only two
separate acts of gain, the insurance proceeds and the estate advance.
The impropriety of allowing unfettered double use of the same "money"
evidence is apparent when analyzing the limited way in which this type of
evidence is logically relevant.
It is commonly understood that the value of money is not intrinsic. Only
in its function as an instrument of exchange does money become the much
sought after object of human endeavors both legal and illegal.
The rationale underlying the concept of financial gains as a motivator
for criminal acts is that the miscreant seeks to have the money in order
to spend it. But whether the money is in fact spent or not the proof of
a financial gain motive is complete with the act of abstaining the funds.
What is done with them later is irrelevant. Even if someone merely
hoards the money, the sense of power and security gained by such act is
the knowledge that it will be available to be spent in the future.
The Court has already ruled that numerous examples of specific
quantified, timely expenditures by the defendants may be admitted at
their joint trial, accompanied by a cascade of limiting instructions. As
demonstrated below the prosecution is now speculative, cumulative,
confusing and time consuming matters of little or no probative value
except the forbidden one of character assassination.
ITEM BY ITEM ANALYSIS
1. Item #1 on the prosecution list reads "Bungalow Suite at the Hotel
Bel Aire- Los Angeles, California (Both)". At the first trial the
prosecution sought admission of evidence that the defendants rented a
suite (the bungalow part a recent descriptive addition undisclosed in the
material the defense has in hand) at the Hotel Bel Aire and proceeded to
incur extensive room, telephone and room service charges. An Evidence
Code Section 402 hearing was held concerning this evidentiary offer on
August 13, 1993 at which defendants' cousin Henry Llanio testified that
he, having decided that the defendants should stay at a hotel accompanied
by Lyle Menendez only, engaged the suite at the Bel Aire. He further
testified that the suite was meant to be a meeting and eating place for
the entire family and served as such. More over it was his belief that
LIVE Entertainment would be paying for the suite just as they were paying
for his and the rest of the family's hotel accommodations at the Hotel
Bel Age. A Copy of this testimony is attached at Exhibit B1. Based upon
this testimony the Court ruled the evidence inadmissible stating, inter
alia, at RT Vol. 68, p. 10864
...(It does seem that the evidence is ambiguous, at best, and the
probative value of it is substantially outweighed by the potential
confusion of issues.
It really doesn't have any relevance in that it doesn't prove anything.
It doesn't establish the state of mind of the defendants in spending
large sums of money.
A copy of the Court's ruling is attached as Exhibit B2.
The prosecution offers no new evidence that would undermine the previous
ruling of this Court. With the exception of Robin Rosenbloom, the
witnesses it lists and the documents it offers (the hotel bill) are the
same as those they were prepared to offer at the first trial. As for Ms.
Rosenbloom, she apparently has nothing relevant to say on this issue
except that Erik and Lyle (whom she does not mention seeing) had a room
at the Hotel Bel Air the day of the Memorial service for their parents.
One suspects that the only purpose the prosecution has for calling her is
not to establish "spending" evidence but to establish "partying"
evidence. Copies of the police report statements of the witnesses and
the documents designated by the prosecution on this issue are attached as
2. Item #2 reads "Skiing trip to Aspen-Aspen, Colorado (Both)". The
designated witnesses are Mark Heffernan and Brian Andersen. An
examination of the prior testimony and all the police interviews with
Mark Heffernan reveals no information whatsoever concerning a skiing trip
by the defendants to Aspen, Colorado. The only reference to this event
by Brian Andersen appears in RT Vol. 133 at page 23038 as follows:
Q. Did you go on a vacation with Erik after his parents were killed?
A. The skiing vacation?
Q. That qualifies as vacation?
Q. Did you?
Q. Where did you go
A. To Aspen, Colorado
Q. And who else was there?
A. Mark Heffernan and Lyle.
A Copy of this page of the transcript is attached as Exhibit C.
Who paid for this vacation? How much did it cost? Was it planned before
the Menendez parents were killed? Did it represent a change in the
defendant's lifestyles or was it like all the other ski trips that
witnesses testified they took over the course of their lives? These and
other questions are unanswered by the discovery and testimonial records.
What is the probative value of this evidence? None.
3. Item #3 reads "Clothes and accessories-Chicago, Illinois (Lyle
only)". The witness is Mark Andersen. A copy of the police interview of
this witness is attached as Exhibit D. The crux of the pertinent portion
of that statement is that while Lyle was in Chicago in January 1990 he,
Mark Andersen and Alan Andersen spent 10 hours at a shopping mall. Lyle
charged $3,500 a charge card. Lyle bought suits. No mention of the
"accessories" appears. Likewise, there is no itemization of the $3,500
nor the number or price of the suits nor any indication of for whom they
were purchased. The jury is to assume that this extravagance without
proof that it is. They are to further assume that extravagance equals
motive. Like the rest of this type of evidence there is no indication
that Lyle was lacking in suits or anything else before his parents died,
nor that an overwhelming desire for suits caused him to kill his parents.
The real purpose of this evidence (and the other nasty things Mark
Andersen is quoted as saying about Lyle's behavior during the shopping
excursion) seems to be the "spoiled rich kid" character attack.
4. Item #4 reads "Private limousines (emphasis added)- Beverly Hills CA
(Lyle only)". The witness is David Cambell. The relevant portions of
his police interviews of September 1, 1989 and July 27, 1994 are attached
as Exhibit E. In those statements Mr. Campbell indicates that on August
31, 1989, after having dinner with Lyle (at an undisclosed restaurant) he
saw Lyle get into a limousine. Was this a $50 lime, a $100 limo? Who
picked up the tab for it? Was this in Beverly Hills? How is this
conceivably proof of motive? It isn't/
5. Item #5 reads "Private limousines-Princeton, New Jersey (Lyle only)"
- the witness is Richard Wenskoski. IN the attached page of the police
report of September 19, 1989, attached as Exhibit F1, the witness states
that Lyle used the phones in the limousines that were rented for him.
This is during the period of time when Lyle was in Princeton for the
funeral of his parents. Everyone there for the Menendez rites was
transported in a limousine. The company paid for them.
Similarly in his testimony of July 27, 1993 appearing in RT vol.55 at
page 8042, a copy of which is attached as Exhibit F2 the witness only
makes passing reference to the fact that Lyle traveled in a limousine in
6. Item #6 is similar to item #5 but here the reference is to Lyle using
private limousines in New York. The Wenskoski statement of August 29,
1994 addressing this issue consists again of only a passing reference to
the fact that when in New York Lyle went to the U.S. Open and "made a
point to use the phone in the limousine". A copy of that statement is
attached as Exhibit G. Neither the information from Wenskoski in support
of item #5 nor item#6 proves that Lyle spent anything. The mere fact of
using limousines within a few days of his parents deaths, before he
received the insurance money, and paid for by persons unknown hardly
constitutes the spending of large sums of money that this Court has
repeatedly referred to as the justification for admitting spending
evidence as probative of motive.
7. Item #7 reads "Private limousines- Chicago Illinois (Lyle only)".
The designated witness is Mark Andersen. There is but one police
interview of this witness. It says nothing about limousines. Perhaps
the prosecution "forgot" to turn over discovery on this issue. Perhaps
they are confused. Perhaps, to paraphrase, they did not "study (the
record) carefully so that should they decide to (proffer) any...evidence
(they) may do so in an articulate manner with the appropriate (factual)
(basis)." (see final paragraph of Conn\Najera letter (Exhibit A2)).
8. Item #8 reads "A state of the art Sony big screen television with
speakers, amplifiers and an entire sound system. (Lyle only)." The
designated witnesses are Perry Berman and Jamie Pisarcik. The only
reference to these items in the discovery record appears in a police
interview of March 13, 1995 with Perry Berman which reads "Lyle bought
Rolex watches and an elaborate entertainment system that cost between
$10,000 and $20,000. The system, that he saw in Lyle's condo in Marina
del Rey (which other evidence showed was rented contrary to the
implication here), had an 8 foot Sony Screen, a state of the art
equalizer... plus all the speakers to go with it." A copy of this
statement is attached as Exhibit H.
A review of all the prior statements and testimony of Jamie Pisarcik
yields no reference whatsoever to these items. Perhaps the prosecution
"forgot" to provide the defense with this information. Perhaps they are
mistaken about Ms. Pisarcik's knowledge on this point. Whatever the
reason, repeated references in the proffer to witnesses who apparently
have no information on the issues makes it unnecessarily difficult for
the defense to respond.
As with items #2 through #7 above there is no documentation of the actual
purchase of these items, no accurate information of when, where or by
whom they were purchased or how much they actually cost.
9. Item #9 reads "A Saab automobile (Lyle only)". The designated
witnesses are Perry Berman and Jamie Pisarcik. The defense does not
object to the introduction of this evidence.
10. Item #10 reads "Vacation trip to Cancun-Mexico (Erik only)." The
designated witnesses are Charles Dickenson (sic) and David Mraovitch.
The first witness' name is, in fact, Charles Dickerson. His information
consists of nothing more than that while he was on vacation in Cancun on
November 11, 1989 he encountered Erik Menendez there. David Mraovitch
testified that he accompanied Erik to Cancun in November, 1989 and to
conversations and activities he and Erik engaged in while there. Mr.
Dickerson's police interview bearing on the subject is attached as
Exhibit I1. Mr. Mraovitch's testimony on this issue, appearing in RT
volume 105 at pages 17499 through 17518 is attached as Exhibit I2. As
with probative value, if any of Erik Menendez having gone to Cancun in
November of 1989, except, as Mr. Mraovitch testified, because he was
depressed and needed a friend to cheer him up. On the issue of motive as
demonstrated by spending money, relevant facts are totally lacking.
Moreover, other testimony at the trial established that vacation trips
were a regular feature of the Menendez family's lifestyle. Given that
and the fact that there is no information or documentation of the cost of
this trip, the probative value of this evidence is nil.
11. Item #11 reads "Skiing trip to Lake Tahoe- Lake Tahoe, Nevada (Erik
only). The witness is Mark Slotkin. A copy of the police interview of
March 30, 1993 bearing on this issue is attached as Exhibit J. The only
expenditure made by Erik Menendez during this trip in December-January,
1989-90 about which Mr. Slotkin has knowledge is a gambling debt of
$4,000 to $5,000. That evidence is not because it demonstrates the
spending of a large sum of money such as would be arguably supportive of
their motive theory but to portray Erik Menendez in an unfavorable light
as a gambler. Even if the court found the amount involved had some
slight probative value, in this instance it would be outweighed by its
12. Item #12 reads "Professional Tennis Circuit-Israel (Erik only)."
The witness is Mark Heffernan. the sum total of Mr. Heffernan's input on
this subject is contained in a police interview dated February 28, 1991,
attached as Exhibit K1 and his testimony of August 13, 1993 appearing in
RT volume 68 at pages 11066-11067, attached as Exhibit K2. All he can
apparently say is that he accompanied Erik to Israel for the latter to
play in a tournament. There is no financial information provided at
all. The fact of Erik traveling to Israel in February 1990 to , in
effect, work, has no probative value on this issue of motive.
13. Item #13 reads "Investments at Smith-Barney-Flordia (Erik only)."
The witness is Martha Cano. A copy of the portion of her testimony
appearing in RT volume 175 pages 12568-12570 which refers to this issue
is attached as Exhibit L. The prosecution's description of this item
contains all the information they have, to wit that Mrs. Cano made
investments. How many, how much, in what, how profitable or otherwise is
left to the imagination. Moreover, to allow the prosecution to prove the
bare fact that some of the Sun Life money was invested at the suggestion
of Mrs. Cano would be to permit the most blatant double use of the same
facts. The likelihood of misleading and confusing the jury by presenting
a false bootstrapped picture of the so-called motive evidence is
especially great concerning this proffer.
The court has already ruled that item #1 is inadmissible. That ruling
was correct when made and is still correct. The defense is not objecting
to the introduction of item #9 (the Saab). With respect to all the other
items proffered in the letter of May 5, 1995 the prosecution has failed
to demonstrate that the evidence is relevant, probative or that its
introduction would not result in the undue consumption of time, confusion
of the issues and misleading the jury or that its probative value is not
outweighed by the risk of substantial prejudice to the defendants.
Therefore, for the reasons set forth above and under Sections 350-352 and
1100 et. seq of the California Evidence Code, the defendants respectfully
request that the proffered evidence be excluded from the trial.
Dated: June 9, 1995
LESILE H. ABRAMSON, A Law Corporation
By: /s/Lesile H. Abramson,
Attorney for Erik Galen Menendez
MICHAEL P. JUDGE, PUBLIC DEFENDER
Charles Gessler, Deputy Public Defender
By: /s/Terri Towery,
Attorneys for Joseph Lyle Menendez
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