Lyle Menendez' Motion to Prohibit Use of Erik's Statements Re Lyle


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

THE PEOPLE OF THE STATE No. BA068880
OF CALIFORNIA,
Plaintiff,

v.

ERIK GALEN MENENDEZ and
JOSEPH LYLE MENENDEZ,
Defendants.

NOTICE OF MOTION AND SUPPLEMENTAL BRIEF BY DEFENDANT JOSEPH LYLE MENENDEZ FOR ORDER PROHIBITING PROSECUTION AND CO-DEFENDANT FROM ELICITING OR REFERRING TO ALLEGED OUT-OF-COURT STATEMENTS BY CO- DEFENDANT WHICH INCRIMINATE DEFENDANT

DATE: January 23, 1995 TIME: 9:00 A.M. PLACE: Department NW N

TO GIL GARCETTI, DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES, AND/OR HIS REPRESENTATIVE, TO ERIK GALEN MENENDEZ AND HIS COUNSEL OF RECORD AND TO THE ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that January 23, 1995, or at a future date convenient to the Court and counsel, at 9:00 a.m. or as soon thereafter as counsel can be heard in Department Northwest "N"" of the above-entitled court, defendant Joseph Lyle Menendez ("Lyle Menendez") will move the Court for an order prohibiting the prosecution and co-defendant Erik Galen Menendez ("Erik Menendez") and his counsel of record from eliciting or referring to alleged out-of-court statements by Erik Menendez which might tend to incriminate Lyle Menendez. The motion will be based on the attached memorandum of points and authorities; the Motion by Defendant Joseph Lyle Menendez for Order Prohibiting Co-Defendant From Eliciting or Referring to any Out-Of-Court Statements by Co- Defendant Which Incriminate Defendant filed December 15, 1994; the People's Supplemental Proffer of Evidence to be Presented Before a Single Jury (undated) originally scheduled for hearing June 27, 1994; the People's Supplemental Proffer of Evidence to be Presented Before a Single Jury dated December 8, 1994; the Response by Joseph Lyle Menendez to People's Proffer of Evidence to be Presented Before a Single Jury dated June 13, 1994 and accompanying Exhibits "1" through "18"; the Response to Prosecution's Proffer of Evidence to be Presented Before a Single Jury filed by Erik Galen Menendez dated June 13, 1994; the Notice of Motion and Motion for Separate Juries, or, in the Alternative, for Separate Trials, with Supporting Points and Authorities and Exhibit "A" filed by defendants Joseph Lyle and Erik Galen Menendez; the transcript of the proceedings in this case; the pleadings, motions, briefs, records and files herein; and such other and further evidence and argument as may be presented by defendant at the hearing on this motion.

Dated this 17th day of January, 1995.

By: /s Terri Towery, Deputy Public Defender
Attorneys for Defendant Joseph Lyle Menendez

MEMORANDUM OF POINT AND AUTHORITIES

I. INTRODUCTION

As described in the Motion by Defendant Joseph Lyle Menendez for Order Prohibiting Co-Defendant From Eliciting or Referring to any Out-Of-Court Statements by Co-Defendant Which Incriminate Defendant filed December 15, 1994 ("Motion to Prohibit"), the application of the Aranda-Bruton rule(1) to the prosecution's previous and pending proffers of evidence has been the subject of substantial briefing and argument by the parties.(2) In the Motion to Prohibit, Lyle Menendez for the first time formally requested that, in addition to the prosecution's proposed redactions of proffered statements to comply with Aranda-Bruton, this Court order co-defendant Erik Menendez to refrain from eliciting the portions of the alleged out-of-court statements by Erik Menendez which might tend to incriminate Lyle Menendez.

In its most recent proffer entitled "People's Supplemental Proffer of Evidence to be Presented Before a Single Jury" dated December 8, 1994 ("Supplemental Proffer"), the prosecution proposes to offer additional testimony of Craig Cignarelli respecting statements purportedly made to him by Erik Menendez.(3) The prosecution further proposes redaction of all such supplemental statements to delete any reference to Lyle Menendez.

This brief is to supplement the Motion to Prohibit, and further to request that this Court preclude the prosecution from eliciting certain alleged statements by Erik Menendez to Craig Cignarelli which might prejudice Lyle Menendez in a joint trial. Specifically, the prosecution should be precluded from eliciting testimony by Craig Cignarelli which, by inference, implies that Lyle Menendez killed his mother. Similarly, the co-defendant should be prevented from bringing out testimony on cross- examination which the prosecution could not ask on direct. This motion and supplemental brief is intended to present an illustrative but not exclusive list of examples of such potential testimony by Mr. Cignarelli.

II. EXAMPLES OF TESTIMONY THE PROSECUTION SHOULD BE PRECLUDED FROM ELICITING

Many cases have been cited to this Court in previous briefs regarding the difficulties encountered in seeking to redact the out-of-court statements of a defendant which implicate his or her co-defendant. See, e.g., People v. Douglas (1991) 234 Cal. App. 3d 273, 285; People v. Terry (1970) 2 Cal. 3d 362, 284-85; People v. Matola (1968) 259 Cal. App. 2d 686, 692-93; see also, Lee v. Illinois (1986) 476 U.S. 530. The Supplemental Proffer proposes to introduce the following redacted testimony by Craig Cignarelli regarding what Erik Menendez supposedly told him:

"He was unable to shoot his mother and she tried to get away. After it looked like his mother was dead, he shot her twice with his gun." (Supplemental Proffer, p.3, ll. 3-5.)

The clear inference in this proposed statement is that, after Erik's mother tried to get away, someone else killed her. Erik then shot her after she appeared to be dead. The "someone else," of course, could only be Lyle Menendez in the minds of the jury members. The proposed redaction thus violates the Aranda-Bruton rule in that the proposed redaction incriminates the non- declarant.

III. EXAMPLES OF TESTIMONY THE CO-DEFENDANT SHOULD BE PRECLUDED FROM ELICITING

The same statement and inference objected to above must not be brought out by co-defendant. In her cross-examination of Craig Cignarelli at the previous trial, counsel for Erik Menendez had the following colloquy:

Ms. Abramson: May I have a moment, your Honor?
Q You first told the story to Detective Zoeller during that November 17th meeting at Baker's Square, correct?
A If it was November 17th, yes.
Q Why don't we -- unless they object, we'll assume it is. And when you told him then what Erik had said to you, you told Detective Zoeller that Erik said that he actually was -- did not shoot his mother when he walked into the room. That, although his brother said, "shoot mom," he couldn't do it.
A That's right. He did not say he didn't shoot.
Q Let's take one line at a time.
A Okay. He said he didn't shoot, though.
Q You told the officers on November 17th that what Erik told you was: "Lyle was to shoot my dad, and I was supposed to shoot my mother."
A That's correct.
Q Are you with me so far?
A Yes.
Q "We went into the room and Lyle pointed his gun at my dad and shot him. He then went over and shot him in the head."
A That's correct.
Q "Lyle shot her too?"
A That's correct.
Q "After it looked like my mother was dead, I shot her twice with my gun'?
A That's correct. (Reporter's Transcript, p. 7803, l. 3 through p. 7804, l. 9.)

Obviously the co-defendant cannot be permitted to present this testimony that the prosecution is precluded from introducing. Similarly, the following previous testimony by Mr. Cignarelli respecting Erik Menendez's statements cannot be pursued by the co- defendant before a single jury:

The Witness: He said that he went back outside and his brother was standing there with two shotguns and said: 'Let's do it.' And they walked inside and Lyle was standing -- or Erik went up to the door on the left, which was slightly open. And the door on the right, Lyle went up and put his shoulder against the door on the right. And Erik said he looked in, saw his parents sitting on the couch. And Lyle sung open the door and shot his father and looked at Erik and said: 'Shoot mom.' And Erik said he shot his mom as she was standing up and yelling." (Reporter's Transcript, p. 7758, ll. 10-21.)

Another example of testimony which may not be elicited by the co- defendant is set forth in an affidavit by Detective Zoeller in support of search warrant number 1542, dated January 24, 1990, which was obtained in connection with this case. In that affidavit, Detective Zoeller states that:

"On November 17, 1989, your affiant interviewed Craig Cignarelli....Erik stated, 'Lyle and I drove up to the house, opening the gate and pulled into the driveway. We unlocked the front door and walked in. My parents were in the family room watching television. Lyle looked at me and said, 'let's do it!' We walked outside to the front of the house and got the guns. We walked back inside and Lyle was to shoot my dad and I was supposed to shoot my mother.'

'We went into the room and Lyle pointed his gun at dad and shot him. He then went over and shot him in the head. I was unable to shoot my mom and she tried to get away. Lyle shot her too. After it looked like my mother was dead, I shot her twice with my gun.' (Affidavit of Det. Les Zoeller, p. 3, ll. 7-25.)

Similarly, the co-defendant must not be permitted to inquire into the following recitation by Detective Zoeller of an alleged statement by Mr. Cignarelli respecting an alleged statement by Erik Menendez:

"Craig then posed the question, 'What if something were to happen to Erik in Mexico, would we (the police) be able to find him.' I/Os asked what he was referring to. He said that Erik was scared of Lyle. What if Lyle found out that Erik had told of the murder or wanted to kill Erik for the entire inheritance." (Beverly Hills Police Report dated 11/28/89, p. 3 of 3.)

IV. CONCLUSION

The above examples further illustrate the pitfalls of seeking to redact the testimony of any witness, and the testimony of Mr. Cignarelli in particular, in a trial before a single jury. For all the reasons set forth herein and in the numerous briefs previously filed on this issue, defendant Lyle Menendez respectfully requests that this motion be granted.

Respectfully submitted,

MICHAEL P. JUDGE, PUBLIC DEFENDER
Charles Gessler, Deputy Public Defender
Terri Towery, Deputy Public Defender
By: /s Terri Towery
Attorneys for Defendant
Joseph Lyle Menendez

FOOTNOTES: 1 Bruton v. United States (1968) 391 U.S. 123, 135, 88 S.Ct. 1620; People v. Aranda (1965) 63 Cal. 2d 518, 530-31.

2 See People's Proffer of Evidence to be Presented Before a Single Jury (undated) originally scheduled for hearing June 27, 1994; People's Supplemental Proffer of Evidence to be Presented Before a Single Jury dated December 8, 1994; Response by Joseph Lyle Menendez to People's Proffer of Evidence to be Presented Before a Single Jury dated June 13, 1994 and accompanying Exhibits "1" through "18"; Response to Prosecution's Proffer of Evidence to be Presented Before a Single Jury filed by Erik Galen Menendez dated June 13, 1994; Notice of Motion and Motion for Separate Juries, or, in the Alternative, for Separate Trials, with Supporting Points and Authorities and Exhibit "A" filed by defendants Joseph Lyle and Erik Galen Menendez; Response to Prosecution Motion to Admit Evidence (Filed Under Seal), filed April 20, 1993 by Lyle Menendez, pp. 21-38; Response to Prosecution Motion to Admit Evidence (Filed Under Seal) filed April 14, 1993 by Erik Menendez, pp. 3-13.

3 Statements supposedly made by Erik Menendez to Craig Cignarelli concerning the homicides were proffered in the People's Proffer of Evidence before a Single Jury (undated) originally scheduled for hearing June 27, 1994. As noted in the Response by Joseph Lyle Menendez to People's Proffer of Evidence to be Presented Before a Single Jury filed June 13, 1994, the prosecution has failed to identify the exact redactions it proposes with respect to those alleged statements, making a specific response to that portion of the proffer relating to Mr. Cignarelli impossible at this time.

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