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Menendez Brother's 6/95 Motion In Limine Re Proffered Spending Evidence

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CASE NO. BA068880





DATE: JUNE 26, 1995
TIME: 9:00 A.M.


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

Charles Gessler, Deputy Public Defender
By /s/ Terri Towery, Attorney for Joseph Lyle Menendez



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, respectively).

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.


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 Exhibit B3.

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?
A. Uh-Huh
Q. Did you?
A. Yes
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 New Jersey.

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 prejudicial effect.

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

Respectfully submitted:

LESILE H. ABRAMSON, A Law Corporation
By: /s/Lesile H. Abramson,
Attorney for Erik Galen Menendez

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

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