IN THE CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT - DIVISION THREE

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff/Respondent,

v.

PHILLIP SPECTOR,

Defendant/Appellant.

)

)

)

)

)

)

)

)

)

)

)

No. B216425

Los Angeles County Superior Court No. BA255233

The Honorable Larry P. Fidler

APPELLANT’S REPLY BRIEF

DENNIS P. RIORDAN, Esq., No. 69320

DONALD M. HORGAN, Esq., No. 121547

RIORDAN & HORGAN

523 Octavia Street

San Francisco, CA 94102

Telephone: (415) 431-3472

CHARLES SEVILLA, Esq., No. 45930

1010 Second Ave., 1825

San Diego CA 92101

Telephone: (619) 232-2222

Attorneys for Appellant

PHILLIP SPECTOR

TABLE OF CONTENTS

I. THE INTRODUCTION AGAINST APPELLANT SPECTOR OF

TESTIMONIAL STATEMENTS BY THE TRIAL JUDGE

VIOLATED HIS STATE STATUTORY AND FEDERAL

CONSTITUTIONAL RIGHTS AND REQUIRES REVERSAL. . . . . . . . . . . . . . 1

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Respondent’s Claim of “Forfeiture” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

C. Judge Fidler’s Statements and Gestures on the Video

Were Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

D. The Prosecution’s Use of Judge Fidler’s Statements

Violated Crawford. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

E. Judge Fidler’s Impermissible Dual Role. . . . . . . . . . . . . . . . . . . . . . . . . . . 12

F. The Error Was Prejudicial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. Lintemoot’s Testimony and Gestures on the Videotape.. . . . . . . . . 15

2. CALCRIM 3550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3. Respondent’s Assessment of the Trial Facts . . . . . . . . . . . . . . . . . . 18

4. The Difference Between The First and Second Trials. . . . . . . . . . . 23

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR UNDER

STATE AND FEDERAL LAW BOTH IN ADMITTING EVIDENCE

OF UNCHARGED BRANDISHING OFFENSES AND IN

INSTRUCTING THE JURY ON HOW THAT EVIDENCE COULD

BE CONSIDERED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

-i-

Table of Contents continued

B. The Trial Court’s Instruction That The §1101(b) Evidence

Could be Used To Establish “That the Defendant Was the

Person Who Committed The Offense Alleged In This Case”

Requires Reversal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

C. The Uncharged Offenses Were Not Admissible Under an

“Absence of Mistake, Accident, or Suicide” Theory. . . . . . . . . . . . . . . . . 33

D. The Uncharged Offense Evidence Was Inadmissible

on a Motive Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

1. The Prosecution’s Motive Theory in This Case

Necessitated an Impermissible Inference Regarding

Spector’s Character.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

2. The Admission of the Uncharged Offenses Was

Clear Error Because of the Absence of a Supportable

Theory of Identity or Common Plan or Design. . . . . . . . . . . . . . . . 41

3. The Record Evidence Does Not Establish the Similarity

Between Charged And Uncharged Offenses . . . . . . . . . . . . . . . . . . 44

E. The Trial Court Did Not Properly Instruct on the Definition

of Motive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

F. The Trial Court Did Not Properly Exercise Its Discretion

Under Evidence Code Section 352. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

G. The Trial Court Improperly Allowed the Prosecution to Argue

That Appellant’s Conduct Demonstrated a Pattern. . . . . . . . . . . . . . . . . . . 53

H. There Was Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

-ii-

Table of Contents continued

III. ADMISSION OF THE TESTIMONY OF VINCENT TANNAZZO

CONCERNING APPELLANT’S PROFANE STATEMENTS

ABOUT WOMEN A DECADE BEFORE THE CHARGED OFFENSE

WAS REVERSIBLE ERROR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

B. The Tannazzo Testimony was Inadmissible Because Intent

Was Not in Dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

C. The Tannazzo Testimony Was Not Admissible as a

“Generic Threat”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

1. The First Statement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

a. The Substance of the Statement . . . . . . . . . . . . . . . . . . . . . . 59

b. The Passage of Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

c. The Circumstances Surrounding the Threat . . . . . . . . . . . . . 61

d. Other Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

2. The Second Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

D. The Remainder of the Tannazzo Testimony Was

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

E. The Tannazzo Testimony Was Barred by Evidence Code

Section 352 and the Federal Due Process Clause. . . . . . . . . . . . . . . . . . . . 65

F. The Court’s Instructional Error Exponentially Compounded

the Prejudice of Its Error in Admitting the Tannazzo Testimony. . . . . . . . 66

IV. PROSECUTION MISCONDUCT DURING FINAL ARGUMENT

PREJUDICED APPELLANT’S RIGHT TO A FAIR TRIAL.. . . . . . . . . . . . . . . 68

-iii-

Table of Contents continued

A. The Misconduct Arguments are Not Forfeited . . . . . . . . . . . . . . . . . . . . . . 68

B. The Prosecution’s “Machinations of the Truth”Theme

Was the Context for the “Hide the Truth” Argument with

Respect to the Expert Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

C. Arguing the Defense Was a “Pay to Say” Case in Which the

Defense Paid Experts to Give Preposterously False Evidence to

“Hide the Truth” Was Not Supported By the Evidence and

Was Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

D. There Was No Evidence the Experts Were Bought to Say

Anything the Defense Desired. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

E. There Was Prejudice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

-iv-

TABLE OF AUTHORITIES

CASES

Berger v. U.S. (1935) 295 U.S. 78 17, 72

Brown v. Lynbaugh (5t h Cir. 1988) 843 F. 849 12, 14

Chapman v. California (1967) 386 U.S. 18 13

County Court of Ulster County v. Allen (1979) 442 U.S. 140 31

Crawford v. Washington (2004) 541 U.S. 36 2, 11

Davis v. Washington (2006) 547 U.S. 813 12

Greenboam v. State (Ind.App. 2006) 766 N.E.2d 1247 24

Harvey v. State (1979) 604 P.2d 586 48

Hassoldt Patrick Media Group, Inc. (2000) 84 Cal. App.4th 153 24, 42

In re Murchison (1955) 349 U.S. 133 12

Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527 11, 22

Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19 23

People v. Abbaszadeh (2003) 106 Cal.App.4th 642 5, 30

People v. Albertson (1944) 23 Cal.2d 550 45

People v. Alcala (1984) 36 Cal.3d 604 24

People v. Antick (1975) 15 Cal.3d 79 54

People v. Arias (1996) 13 Cal.4th 92 65, 72

People v. Armstead (2002) 102 Cal.App.4th 784 27

-v-

People v. Asbury (1985) 173 Cal.App.3d 362 71

People v. Bain (1971) 5 Cal.3d 839 76

People v. Becerra (2008) 165 Cal.App.4th 1064 81

People v. Bennett (1969) 276 Cal.App.2d 172 14

People v. Bentley (1955) 131 Cal.App.2d 687 83

People v. Bolton (1979) 23 Cal.3d 208 14, 17

People v. Brooks (1979) 88 Cal.App.3d 180 23

People v. Burns (1987) 189 Cal.App.3d 734 50

People v. Cardenas (1982) 31 Cal.3d 897 13

People v. Cartier (1960) 54 Cal.2d 300 60

People v. Chaney (2007) 148 Cal.App.4th 772 5

People v. Collins (1968) 68 Cal.2d 319 14

People v. Crittenden (1994) 9 Cal.4th 83 5, 71

People v. Cunningham (2001) 25 Cal.4th 926 54, 71

People v. Davis (2009) 46 Cal.4th 539 45, 50, 61

People v. Deeney (1983) 145 Cal.App.3d 647 37

People v. Dees (1990) 221 Cal.App.3d 588 29

People v. Demetrulias (2006) 39 Cal.4th 1 4, 66, 69

People v. Dennis (1998) 17 Cal.4th 468 4, 68

People v. Duncan (1945) 72 Cal.App.2d 247 62

-vi-

People v. Ewoldt (1994) 7 Cal.4th 380 passim

People v. Farnam (2002) 28 Cal.4th 107 4, 68

People v. Gallego (1990) 52 Cal.3d 115 45

People v. Gibson (1976) 56 Cal.App.3d 119 47, 54

People v. Guerrero (1976) 16 Cal.3d 719 25

People v. Harris (2005) 37 Cal.4th 310 28

People v. Karis (1988) 46 Cal.3d 612 passim

People v. Lang (1989) 49 Cal.3d 991 60

People v. Love (1980) 111 Cal.App.3d Supp. 1 39

People v. Marquez (1992) 1 Cal.4th 553 69, 71

People v. Mattson (1990) 50 Cal.3d 826 5

People v. McCray (1997) 58 Cal.App.4th 159 60

People v. McGreen (1980) 107 Cal.App.3d 504 75, 81

People v. Morris (1991) 53 Cal.3d 152 64

People v. Norwood (1972) 26 Cal.App.3d 148 5

People v. Ogunmola (1989) 39 Cal.3d 120 23

People v. Pantages (1931) 212 Cal. 237 83

People v. Peete (1946) 28 Cal.2d 306 50

People v. Perry (1972) 7 Cal.3d 756 74

People v. Pic'l (1981) 114 Cal.App.3d 824 74

-vii-

People v. Riel (2000) 22 Cal.4th 1153 5

People v. Rivera (2003) 107 Cal.App.4th 1374 5

People v. Robinson (1946) 73 Cal.App.2d 233 14

People v. Roder (1983) 33 Cal.3d 491 31, 32, 71

People v. Rucker (1980) 26 Cal.3d 368 14, 18

People v. Sandoval (1992) 4 Cal.4th 15 passim

People v. Scaffidi (1992) 11 Cal.App.4th 145 5

People v. Scheer (1998) 68 Cal.App.4th 1009] 41

People v. Scott (1978) 21 Cal.3d 284 5

People v. Tafoya (2007) 42 Cal.4th 147 4

People v. Turner (1994) 8 Cal.4th 137 8, 9, 17

People v. Vance (2010) 188 Cal.App.4th 1182 70

People v. Wattier (1996) 51 Cal.App.4th 948 6

People v. Weatherford (1945) 27 Cal.2d 401 18

People v. Wells (1893) 100 Cal. 459 84

People v. Wesson (2006) 138 Cal.App.4th 959 50

People v. Whisenhunt (2008) 44 Cal.4th 174 34, 60, 75

People v. White (1958) 50 Cal.2d 428 83

People v. Young (2005) 34 Cal.4th 1149 82

State v. Lassiter (S.D. 2005) 692 N.W.2d 171 40

-viii-

Surprenant v. Rivas (1st Cir. 2005) 424 F.3d 5 54

Tyler v. Swenson (8th Cir. 1970) 427 F.2d 412 12

United States v. Cunningham (7th Cir. 1996) 103 F.3d 553 48

United States v. Foskey (D.C. Cir. 1980) 636 F.2d 517 49

United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315 67

United States v. Manafzadeh (2d Cir. 1979) 592 F.2d 81 37

United States v. Sampson (3rd Cir. 1992) 980 F.2d 883 25

United States v. San Martin (5th Cir. 1974) 505 F.2d 918 51

United States v. Thomas (7th Cir. 2003) 321 F.3d 627 54

Vorse v. Sarasy (1997) 53 Cal.App.4th 998 51

STATUTES

Evid. Code §703 12, 13

Evid. Code §1101 passim

Evid. Code, section 1221 7

Evid. Code section 1290, et. seq 6

-ix-

I. THE INTRODUCTION AGAINST APPELLANT SPECTOR OF

TESTIMONIAL STATEMENTS BY THE TRIAL JUDGE

VIOLATED HIS STATE STATUTORY AND FEDERAL

CONSTITUTIONAL RIGHTS AND REQUIRES REVERSAL

A. Introduction

Appellant Spector has challenged the admission at his retrial of a video containing

factual assertions and gestures made by his trial judge at a hearing outside the presence of

the jury at Mr. Spector’s first trial. Respondent fairly recapitulates Spector’s claims: “Not

contesting the admission of Lintemoot’s prior testimony and visual demonstration,

appellant instead complains that the evidence of the trial court’s participation in the

[videotaped] examination of Lintemoot was inadmissible hearsay, infringed on his Sixth

Amendment right to confront witnesses, and violated his state and federal constitutional

rights to be present at the prior hearing and to have the trial judge not testify in his case.”

(Respondent’s Brief [“RB”], 55.)

In its responsive briefing to these claims of error, respondent expends far fewer

pages arguing that the video was properly admitted than it does contending that the claims

of error were waived or that the errors were harmless. That was an inevitable tactical

decision because no California court (or, apparently, any court in this nation) has ever

approved admitting the out-of-court statements of the very judge presiding over a

defendant’s trial as evidence of that defendant’s guilt, much less the posting during

closing arguments of a photo of the trial judge as one of the prosecution’s principal

witnesses.

As will be demonstrated below, the state’s assertion that Mr. Spector’s claims of

statutory and constitutional error were waived below is frivolous, as timely and specific

objections to the video containing the trial judge’s comments and gestures were made

before the video was admitted. As to the issue of prejudice, this prosecution mistried

once; the guilty verdict at appellant’s retrial was returned only after lengthy jury

deliberations; and the evidentiary error raised here bore on the most important factual

1

issue in the case. These facts alone defeat the state’s claim of harmless error.

Nonetheless, because the state advances numerous misleading contentions concerning the

strength of the trial evidence, and because the issue of prejudice arises again as to Mr.

Spector’s other appellate claims, appellant will reply to the state’s harmlessness argument

at some length.

B. Respondent’s Claim of “Forfeiture”

The state concedes, as it must, that before the video containing Judge Fidler’s

statements was offered and admitted into evidence, appellant’s counsel objected to its

admission on “hearsay and Crawford grounds....” (RB, at 60.) Indeed, citing Crawford,1

the defense objected that the “video has the court making certain statements about what it

observed and the court doing that in a way that became testimony, and it cannot be cross-

examined.” (46 RT 9141; see also 46 RT 9142 -9143: “By taking a clip from a previous

trial, we are denied the right to cross-examine or to correct a record...[I]f the testimony

had come in in this proceeding, we would have had the right to cross-examine, and we

didn’t.”) The defense also objected that the video was used to cross-examine an expert,

and that material used to test the opinion of an expert does not thereby become

admissible. (46 RT 9140.)

Despite these timely objections on the grounds raised here on appeal, respondent

now claims that “appellant forfeited his claims regarding the videotape by failing to make

timely and specific objections below.” (RB 57-60.) The claim is utterly lacking in merit.

As the state’s brief establishes, the prosecution first made use of the video

containing Judge Fidler’s statements during the cross-examination of a defense witness,

Dr. Lakshmanan, the Los Angeles Medical Examiner. (RB, at 59.) Expert witnesses are

frequently examined on the basis of materials that then are not admitted into evidence. At

no point during the prosecution’s examination of Lakshmanan did the prosecution attempt

Crawford v. Washington (2004) 541 U.S. 36.1

2

to admit the video, much less indicate an intention to rely on Judge Fidler’s statements as

evidence of Spector’s guilt or innocence. Because the state had not attempted to admit the

video, the only objection the defense could have made was to the use of the video exhibit

as a basis for questioning Lakshmanan, and, as the state concedes, Spector’s counsel

made that objection. (RB, at 59, citing 28 RT 6309-6310.)

The prosecution played the video for a second time during its cross-examination of

defense expert Spitz. Again, the state made no attempt to admit the video during its

questioning of Spitz, so any objection to the video’s admission or the evidentiary use of

Judge Fidler’s statements would have been meaningless. What the defense could and did

object to was the displaying of Judge Fidler’s comments to the jury during Spitz’s

questioning. (RB, at 59, citing 34 RT 6624.)

Appellant’s appellate challenge is not to the fact that the video was shown to the

jury, although defense counsel’s objection to that display was well-taken, but to the

admission of Judge Fidler’s statements on the video as substantive evidence of

appellant’s guilt. Spector’s objection on hearsay and Crawford grounds to the video’s

admission was made both as soon as the prosecution made clear its intention to use the

video for that purpose, and before the court admitted the video into evidence. No

California case, and certainly none cited by respondent, has ever held that a specific

objection to evidence made before that evidence is admitted, as was the case here, can be

deemed untimely for the purpose of preserving that issue for appeal.

The state apparently contends that appellant Spector was required to object to

Judge Fidler’s videotaped statements when the state first displayed the video during its

cross-examination of Doctor Lakshmanan and later during its cross of Doctor Spitz. (RB

at 59.). As noted, defense counsel Weinberg did indeed object to the video’s use on those

occasions. But Spector’s counsel could not object to the admission of Judge Fidler’s

statements at that juncture because no attempt was made to move them into evidence at

that time. The questions put to these two witnesses by the prosecution based on the video

3

were not evidence; the only evidence admitted during the cross-examination of

Lakshmanan and Spitz was their sworn answers, not the statements of Lintemoot on the

video, much less the comments of Judge Fidler.

The principal case cited by the state, People v. Demetrulias (2006) 39 Cal.4th 1,

20-22, held that an objection to testimony on relevancy grounds was not specific enough

to preserve an objection on the ground of inadmissible character evidence, and an

objection made several days after the testimony was admitted on the appropriate

“character evidence” grounds was too late to be timely. Demetrulias simply stands for the

proposition that a specific objection must be made before evidence is admitted. The state

misstates the Demetrulias holding by asserting it requires an objection before the

evidence is “produced,” whatever that means (e.g., produced in discovery?). The

Demetrulias discussion does not contain the word “produced.”2

The prosecution could not have asked the jury in its closing argument to consider

the videotaped testimony of Lintemoot or the accompanying comments of Judge Fidler to

be proof of guilt unless and until the video was offered and admitted into evidence.

Before the video’s admission, counsel for Mr. Spector indisputably made the timely and

specific objections that are the basis of his claims here. The trial court fully understood

the nature of appellant’s objections when ruling his comments on the video to be

admissible evidence. (See People v. Scott (1978) 21 Cal.3d 284, 290 [“Preliminarily, we

People v. Tafoya (2007) 42 Cal.4th 147, 166, cited by respondent at page 59 of its2

brief, simply stands for the proposition that a confrontation clause objection cannot

ordinarily be raised on appeal if it was not made during trial. (Id., citing People v. Lewis

and Oliver (2006) 39 Cal.4th 970, 1028 fn. 19 [defendants forfeited confrontation clause

claim by failing to raise it at trial].) People v. Farnam (2002) 28 Cal.4th 107, 153 and

People v. Barnett 91998) 17 Cal.4th 1044, 1122, stand for nothing more than the

proposition that testimony must be objected to on a specific ground when the testimony is

admitted to preserve that specific ground as a basis for an appellate challenge. These

cases are of no assistance to the state here, where the defense raised timely, specific

objections to the admission of the video.

4

dispose of the People’s contention that defendant waived his objections, first, by failing to

raise them with sufficient specificity before the trial court, and second, by declining to

renew them after the test results were known. We cannot accept the contention. ¶ .... ¶An

objection is sufficient if it fairly apprises the trial court of the issue it is being called upon

to decide.”]) And, obviously, given the number of defense objections to the video’s use3

overruled by Judge Fidler before and after its formal admission, there can be no serious

contention that an even earlier objection would have met a different fate. (People v.

Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [A defendant need not object if it would

have been futile to do so]; People v. Sandoval (2001) 87 Cal.App.4th 1425, 1433, fn. 1

[same].) Appellant Spector has not forfeited his statutory and constitutional claims.4

Had defense counsel’s hearsay and Crawford objections been untimely, and they3

certainly were not, the issue would still be ripe for decision on appeal. Because counsel

obviously sought to exclude the Fidler evidence, any failure to properly object to its

admission would be the basis for a claim of ineffective assistance of counsel. (People v.

Mattson (1990) 50 Cal.3d 826, 854; People v. Scaffidi (1992) 11 Cal.App.4th 145, 151);

People v. Norwood (1972) 26 Cal.App. 3d 148, 153 [“A matter normally not reviewable

upon direct appeal, but ... vulnerable to habeas corpus proceedings based upon

constitutional grounds may be considered upon direct appeal ....”]; see also People v.

Crittenden (1994) 9 Cal.4th 83, 146 [defense counsel waived issues of prosecution

misconduct for failure of trial counsel to object, but court reviewed the issue:

“Nonetheless, in view of the potential claim that counsel’s failure to object on the specific

grounds urged on appeal denied him his rights under the state and federal Constitutions to

the effective assistance of counsel, we review these claims on the merits”]; People v.

Chaney (2007) 148 Cal.App.4th 772, 780 [“we choose to address the issue on its merits

even though it was waived by failure to specifically object”]; People v. Rivera (2003) 107

Cal.App.4th 1374, 1379 [“Because appellant contends that any waiver would constitute

ineffective assistance of counsel, we will consider appellant's contention”].)

Furthermore, when an issue of forfeiture is close and difficult, the appellate court4

will assume defendant has preserved the issue and address it on its merits. (E.g., People v.

Riel (2000) 22 Cal.4th 1153, 1192 [issue addressed on merits where defendant made a

motion to strike testimony the day after the witness testified]; accord People v. Champion

(1995) 9 Cal.4th 879, 908, fn. 6; People v. Wattier (1996) 51 Cal.App.4th 948, 953.)

5

C. Judge Fidler’s Statements and Gestures on the Video

Were Hearsay

As respondent acknowledges, “[h]earsay is an out-of-court statement that is

offered to prove the statement’s truth; hearsay is inadmissible absent an applicable

exception.” (RB, at 60.) In the context of the hearsay rule, of course, “out-of-court” refers

to any court proceeding other than the one in which the statement is being offered. Thus,

a statement made “in court” during a preliminary hearing or during a prior trial

nevertheless is an “out-of-court” statement for the purposes of the hearsay rule when

offered at a later trial, although such hearsay testimony may be admissible under a

statutory exception to the hearsay rule. (Evid. Code section 1290, et. seq.) The state does

not dispute that Judge Fidler’s videotaped statements were made “out-of-court.” Their

admissibility thus turns on the answers to two remaining questions. The first is whether

Judge Fidler’s taped statements were admitted for the purpose of proving the truth of his

statements; the second is, if so admitted, did the statements fall within a recognized

exception to the hearsay rule?

As to the purpose for which the statements were admitted, jurors at the second trial

watching the tape alone could not see where Lintemoot was pointing because her wrists

were facing away from the camera. Respondent concedes as much. (RB, at 57.) In the

course of arguing a motion to strike Lintemoot’s testimony on blood spatter, which the

trial court denied, defense counsel Weinberg noted that the video does not clearly show

where Lintemoot was pointing, and that on the video prosecutor “Jackson doesn’t know

exactly where she is pointing to.” (40 RT 7883.) Mr. Weinberg stated: “There is then a

confusion...The court then indicates the backs of the wrist. I don’t know what why [sic]

the court did that.” (Id.) Judge Fidler replied: “Because I had the best view in the

courtroom....I’m looking down on the witness. Everybody else — she didn’t show it

where the jury can see the top. The lawyers can’t even see it. The only person who could

see it is me, and I describe what I’m watching.” (Id.)

6

When he finally admitted the video over defense objection, Judge Fidler justified

his ruling by stating; “[A]t any time, in any trial, a court may define and describe what a

witness is doing ... I had the best view of Miss Lintemoot, so it was appropriate for me to

do it.” (46 RT 9142.) Judge Fidler thus stated in no uncertain terms that his statements

were intended to establish the truth of what he had claimed to have observed.

In closing, prosecutor Do argued that jurors should determine the meaning of

Lintemoot’s testimony by taking as true the taped statements and the gestures that Judge

Fidler concerning Lintemoot’s testimony. While playing the video tape in slow motion,

Do stated:

[T]he judge who had the best position, seated next to the

witness, looks over to what she’s done in that videotape, and

then he describes it both by words and by his own

demonstration, and this is what he did. So, when Mr.

Weinberg gets up here and tries to argue that it wasn’t here

and it’s here, remember this videotape because he’s going to

be telling you you can’t even believe your own eyes.

(47 RT 9295; see also 47 RT 9275: Lintemoot and “the judge both indicated the back

spatter was on Lana’s wrist on the outside.”)

Plainly, Judge Fidler admitted his own statements as proof of the truth of what

those statements asserted, and the prosecution urged the jury to consider the statements to

be just that.

As to the second question, there is no exception to the hearsay rule that would

allow an out-of-court statement by a judge concerning the testimony of a witness taken

during a hearing conducted outside the presence of the jury to be admitted for the truth of

what it asserts at a defendant’s trial. Respondent’s assertion that the “adoptive admission”

exception to the hearsay rule (Evid. Code, section 1221) constituted an appropriate

conduit for the admission of Judge Fidler’s statements (RB, at 63) was and remains

plainly meritless, as that rule reaches only the adoptive admission by a party of the truth

7

of statements made to that party; it has no application to a witness such as Lintemoot.

Respondent candidly admitted its blunder in its letter of October 15, 2010, filed in this

Court only a few days after Respondent’s Brief. But respondent’s egregious error

regarding the scope of the adoptive admissions exception to the hearsay rule fatally

infects the remainder of its argument on the hearsay question.

Other than section 1221 itself, respondent relies on People v. Turner (1994) 8

Cal.4th 137, 189 for the proposition that “[a] declarant’s statement is nonhearsay when it

places the declarant’s statement’s in context.” Quoting Turner, respondent argues that

“the trial court’s questions, clarifications, and gestures on the videotape of the prior

testimony of Jaime Lintemoot were admissible for the non-hearsay purpose of giving

context and meaning to Lintemoot’s responses.” (RB, at 61.) But Turner did not hold that

the statements of a third party declarant — a Mr. Scott — were “admissible for the non-

hearsay purpose of giving context and meaning” to a witness’s testimony; rather, Turner

permitted the admission of Scott’s statements to the defendant because Scott’s statements

“gave context and meaning to defendant’s admissions.” (RB, at 61, quoting 8 Cal.4th at

190; emphasis added) The defendant’s statements in Turner were admitted under

Evidence Code section 1220, an exception to the hearsay rule which, like section 1221,

excepts admissions by a party from the reach of the hearsay rule. Section 1220 and

Turner have no more application to the present case than does section 1221.

Furthermore, respondent’s claim that the trial court’s statements “were admissible

for the non-hearsay purpose of giving context and meaning to Lintemoot’s responses” and

“functioned only as questions that placed Lintemoot’s testimony in context” (RB, at 61,

62-63) is belied by the fact that the most critical exchange on the tape contained only

statements and gestures made by Judge Fidler and replies by prosecutor Jackson; there are

8

no “responses” from Lintemoot during this exchange. Judge Fidler’s statements and5

gestures were coming in not to “place[] Lintemoot’s testimony in context,” as respondent

now contends, but rather to independently supplement the witness’s testimony, which,

standing alone, was quite unclear. (See 40RT 7883: Judge Fidler states that Lintemoot

“didn’t show it where the jury can see the top. The lawyers can’t even see it. The only

person who could see it is me, and I describe what I’m watching.”)

Of paramount importance, in Turner, “the jury was repeatedly instructed that they

were not to consider Scott's statements for the truth of the matter asserted, but merely to

give context to defendant's statements. . .” as well as that Scott’s statements were not

evidence, and the Supreme Court “presume[d] that the jury followed the court's

instructions.” (8 Cal.4th at 192.) Here, Judge Fidler did not instruct the jury to consider

his statements as providing mere context to Lintemoot’s testimony; and he certainly did

not bar the jury from considering his statements as evidence proving the truth of the

matter asserted, as was true of Scott’s statements in Turner. To the contrary, Judge Fidler

intended his statements and gestures to serve as “stand-alone” evidence as to what

Lintemoot pointed to in testifying about the blood spatter she claimed to have observed

on Lana Clarkson’s wrists. The prosecutor then urged jurors to consider Judge Fidler the

THE COURT [gesticulating]: I would say it’s from – if you take where the wrist 5

joint is, the two to three - inch radius would be in a circle from that point.

Would that be correct?

MR. JACKSON: The interior wrist, that portion of the wrist joint –

THE COURT: That’s the exterior, isn’t it? The interior would be this part, the

exterior would be where she was pointing.

MR. JACKSON: Actually, I was making a differentiation between this part of the

joint and that part of the joint.

(RT of May 4, 2007, at 1797-1799.)

9

best witness on the blood spatter point. That is why the prosecution took the remarkable

step in closing argument of displaying a photo of Judge Fidler among the photos of its

principal witnesses. (47 RT 9275, 9319, 9321.)

Respondent cites Evidence Code section 775 and People v. Harris (2005) 37

Cal.4th 310, 350 for the proposition that a judge may and should participate in the

examination of witnesses when to do so will assist the jury’s understanding of the

evidence. (RB, at 61.) But appellant does not here complain of any participation by

Judge Fidler in the examination of witnesses at his second trial. Nor does he contend that

Judge Fidler acted improperly in making comments concerning his observations during

the examination of Lintemoot during the hearing outside the presence of the jury during

Spector’s first trial. The issue is rather whether Judge Fidler’s out-of-court statements at

that time were admissible at Spector’s retrial to prove the truth of what they asserted.

Section 775 does not contain an exception to the hearsay rule, and neither Harris nor any

case interpreting section 775 is of any relevance to the hearsay issue now before this

Court.

Unless its meets the requirements of Evidence Code section 1290, even sworn

testimony taken at a court hearing is inadmissible hearsay when offered at a later trial.

Judge Fidler’s observations of Lintemoot’s prior testimony would have been admissible at

Spector’s retrial only if the judge had disqualified himself and subjected himself to cross-

examination by Spector’s counsel. His videotaped out-of-court statements constituted

hearsay as to which no exception to the hearsay bar applied, and the prosecution’s

dramatic reliance upon those statements to gain Spector’s conviction was grave error.

D. The Prosecution’s Use of Judge Fidler’s Statements ViolatedCrawford

Respondent advances several contentions why the hearsay error did not violate the

Sixth Amendment right to confrontation, as defined in Crawford. First, it claims that the

Sixth Amendment “is inapplicable to the introduction of out-of-court statements for non-

10

hearsay purposes” and that “the confrontation clause is also not implicated by adoptive

admissions,” citing Turner, supra. (RB, at 64)

Here, the trial court’s questions and clarifying gestures on the

videotape did not violate appellant’s confrontation rights

because they served the non-hearsay purpose of giving

meaning and context to Lintemoot’s opinion testimony.

Moreover, as statements that Lintemoot concurred with, they

were adoptive admissions exempted from the confrontation

clause.

(Id.; emphasis added)

But respondent has already conceded in its letter to this Court that it erred in

relying on the “adoptive admissions” doctrine to defend the introduction of Judge Fidler’s

statements, and appellant has demonstrated above that the judge’s statements were indeed

admitted to prove the truth of what they asserted, rather than for a non-hearsay purpose.

Respondent also argues that Judge Fidler’s statements were not “testimonial,” as

that term is defined by Crawford, and thus not subject to the constraints of the

Confrontation Clause. (RB, at 65.) The argument is frivolous. Crawford defined a

“testimonial” statement as "[a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact" which is made “under circumstances which would lead

an objective witness reasonably to believe that the statement would be available for use at

a later trial.” (541 U.S. at 51-52; accord, Melendez-Diaz v. Massachusetts (2009) 557

U.S. __, 129 S.Ct. 2527.) Such statements need not be sworn. (Crawford, 541 U.S. at 51-

52.) Crawford emphasized that it is the “involvement of government officers in the

production of testimonial evidence..., whether the officers are police or justices of the

peace” that gives rise to the risks of unreliability that the Confrontation Clause was

designed to protect against. (Id.)

Given this definition, it is simply preposterous to suggest that a statement by a

judge in court in the midst of criminal trial proceedings, which indisputably was “made

11

for the purpose of establishing or proving some fact" about the testimony in that

proceeding, and which was both transcribed by a court reporter and preserved by

videotape, is not ‘testimonial’ within the meaning of Crawford. It is nonsense to argue,

as respondent does, that the admission of Judge Fidler’s statements can be justified under

the holding of Davis v. Washington (2006) 547 U.S. 813, which held nothing more than

that “[s]tatements are nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the interrogation is

to enable police assistance to meet an ongoing emergency.” (Id., at 822.) Davis has

nothing remotely to do with judicial statements made during the course of criminal

proceedings. The admission of Judge Fidler’s statements in violation of Crawford’s

requirement of cross-examination deprived appellant Spector of his Sixth Amendment

right to confrontation.

E. Judge Fidler’s Impermissible Dual Role

Due process is denied to a defendant where the trial judge gives evidence against

him. (Brown v. Lynbaugh (5 Cir. 1988) 843 F. 849, 851 [“We conclude that Brown wast h

denied a fair trial when the state was allowed to establish the essential elements of the

crime of escape through the testimony of the presiding trial judge.”]; see also In re

Murchison (1955) 349 U.S. 133 [judge may not serve as fact finder in a contempt

proceeding in which he would also be a witness]; Tyler v. Swenson (8th Cir. 1970) 427

F.2d 412, 416 [A judge cannot serve as a material witness as well as the trier of fact.)] In

California, a judge cannot testify in a civil or criminal case unless he first discloses the

nature of his testimony to the parties and offers them a chance to object; if any such

objection is lodged, the judge must declare a mistrial and recuse himself. (Evid. Code §

703.)

In arguing that a mistrial and recusal was not required, respondent asserts that:

“The trial court’s questions and gestures merely put Lintemoot’s testimony into context

and were not testimony.” (RB, at 65.) The contention that Judge Fidler’s statements were

12

not admitted as “testimony” has been fully rebutted above, but it rings especially hollow6

in light of the fact that in closing argument the prosecution placed Judge Fidler’s photo

before the jury as one of its witnesses. When the defense objected and asked Judge Fidler

to instruct the jury that “the court is not a witness for either party” (47 RT 9319), the court

denied the request, ruling that the prosecution’s use of the video in closing argument was

not error. (47 RT 9320-9321)

At least at the point in closing when the prosecution categorized the trial judge as

one of their chief witnesses, Judge Fidler was required to declare a mistrial and allow the

matter to be tried before another judge, permitting Judge Fidler to be called as a witness,

and, if the prosecution chose that course, to be cross-examined by the defense. (Evid.

Code § 703.) The failure to declare a mistrial was another source of grave trial error.

F. The Error Was Prejudicial

Appellant Spector’s case was sufficiently close that the errors described in this

argument must be held prejudicial under either a Chapman or Watson standard.

(Chapman v. California (1967) 386 U.S. 18, 23; People v. Watson (1956) 46 Cal.2d 818,

836.) There is at least a reasonable probability of a different outcome. The first trial,

after two weeks of deliberations and four votes, reported itself solidly deadlocked at 7 to

5, and, after further deliberations proved futile, a mistrial was declared. The reason for

that deadlock was stated by the trial judge: "We don't know how the gun got in her

mouth." (FT 11878.)

Even with the prosecution improperly making the trial judge a witness who

supported the prosecution theory of the case, the second jury deliberated over nine days.

Courts have considered considerably shorter deliberations as indicia of the closeness of a

case. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 907 [deliberations of 12 hours

Respondent’s claim that the testimony was not timely objected to and thus6

“Evidence Code section 703 does not afford appellant relief’” (RB, at 66) has also been

refuted in the above section.

13

represented “graphic demonstration of the closeness of this case”]; People v. Woodard

(1979) 23 Cal.3d 329, 341 [deliberations of six hours indicates case “was far from open

and shut”]; People v. Rucker (1980) 26 Cal.3d 368, 391 [nine hours of deliberations

underscores fact that defense was strong]; People v. Collins (1968) 68 Cal.2d 319, 332

[approximately eight hours of deliberations sign of closeness of case]; People v. Bennett

(1969) 276 Cal.App.2d 172, 177, fn. 10 [10 hours of deliberations indicative of jury

doubts regarding prosecution’s case].)

Respondent advances about a half dozen arguments in support of its contention

that the admission of Judge Fidler’s videotaped, out-of-court statements, and the use of

that evidence in the prosecution’s closing was harmless. These contentions, some self-

contradictory, will be discussed below.

Initially, however, a claim that respondent fails to address in its brief must be

noted: i.e., irrespective of the specific testimony tendered by the trial judge, the very fact

that Judge Fidler permitted himself to be used as a prosecution witness, thereby placing

his credibility in service of the prosecution’s case, deprived appellant of a fair trial. “It is

difficult to see how the neutral role of the court could be more compromised, or more

blurred with the prosecutor's role, than when the judge serves as a witness for the state.”

(Brown v. Lynaugh, 843 F.2d at 850.) “[T]he members of the jury are apt to give great

weight to any hint from the judge as to his opinion on the weight of the evidence or the

credibility of the witnesses....” (People v. Robinson (1946) 73 Cal.App.2d 233, 237.)

Respondent concedes that “a biased trial judge’ is one of the structural errors that

requires reversal without any showing of specific prejudice. (RB, at 67, citing

Washington v. Recuenco (2006) 548 U.S. 212, 218-219 & fn.2.) Under California law,

testifying for the prosecution establishes a disqualifying bias as a matter of law. Reversal

is required on that basis alone.

//

14

1. Lintemoot’s Testimony and Gestures on the Videotape

Respondent observes that Lintemoot’s testimony concerning blood spatter on

Clarkson’s wrists was an important piece of evidence used to show that “Clarkson could

not have shot herself.” (RB 55.) Respondent argues, however, that: “The jury...would

have come to the same conclusion about the location of the spatter even without the trial

court’s questioning and gesturing.” (RB, at 68.) That contention is rebutted by the

prosecution’s fervent embrace of the Fidler evidence at trial.

Lintemoot’s testimony and work in the case was initially poorly documented and

vague. The prosecution knew this very early in the investigation. In February 2004, well7

before trial, there was a meeting held where the prosecution criticized the lack of precise

location of spatter in Lintemoot’s notes or in the photos she directed be taken. (18 RT

3386; 28 RT 5598; Exhibit 608.)

In her trial testimony Lintemoot initially agreed with appellant where the

undocumented spatter was located. After she was excused, the prosecution phoned her8

and told her “there was some confusion as to the area the blood spatter was in and asked

me to come back and clarify that.” (18 RT 3385.) On recall, she testified she did not

agree with appellant’s counsel. She testified she saw spatter in the wrist joint with a

radius of 2-3 inches. (18 RT 3391.) In this regard, it must be noted that Dr. Pena, who

conducted the autopsy, did not mention any spatter on the back of Clarkson’s hands when

he examined her. Photographs taken do not show spatter. (28 RT 5600.) Clarkson’s

In Lintemoot’s report, she identified two areas - a small area of stain and a large7

smear, both on the back of Clarkson's left hand, between the forefinger and the thumb as

follows: "left wrist – outside ‘blood splatter'"; "left wrist – inner larger area." (Exhibit

613.)

Lintemoot testified she did not recall (and did not document) spatter being on the8

left half of the back of the left hand or on the right side of the back of the right hand.

(18RT 3297.) She could not point to one photo taken of the back of Clarkson’s wrists.

(18RT 3389.)

15

body was washed by his office afterward. (Id.)

Needless to say, Lintemoot’s statements about the location of spatter on the back

of Clarkson’s wrists tested her competence and credibility. Her testimony was important

to justify Dr. Herold’s change of position from the first trial (where Herold conceded that

there was no forensic evidence inconsistent with the conclusion Ms. Clarkson shot

herself) to then testifying at the second trial that if there were blood spatter evidence as

Lintemoot testified on the back of the wrists, then Clarkson did not shoot herself. (26 RT

5069, 5071, 5276.)

As respondent notes, when Lintemoot pointed to her hands on the videotape, her

wrists were away from the camera. (RB 57.) Given her failures to direct that detail-

revealing photographs be taken of Clarkson’s wrists (which was her responsibility) or to

contemporaneously document the spots with precision, and given her testimonial flip-

flopping, the judge’s videotaped comments about the spatter location became critical.

(See appellant’s accurate description of her failure to take contemporaneous notes or

photos and contradictory testimony at 40 RT 7880-7883.) For that reason, the prosecutor

relied heavily on Judge Fidler’s videotaped statements in closing to argue its view of what

Lintemoot had seen on Clarkson’s wrists.

[J]ust so we are clear, let’s go through it in slow motion. She

is pointing to the backside of the wrist at the joint area, just

like she’s consistently testified. Now, the judge who had the

best position, seated next to the witness, looks over to what

she’s done in that videotape, and then he describes it both by

words and by his own demonstration, and this is what he did.

(47 RT 9295; italics added.)

Indeed, even here on appeal, the government endorses Judge Fidler’s statement at

trial that he “had the best view of Ms. Lintemoot.” (RB, at 69.) His judicial evidence was

particularly prejudicial to the defense as it was used by prosecutor Do in closing to attack

the integrity of defense counsel.

16

So, when Mr. Weinberg gets up here and tries to argue to you

that it wasn’t here and that it’s here, remember this videotape

because then he’s going to be telling you you can’t believe

your own eyes.

(47 RT 9295.)

2. CALCRIM 3550

Respondent relies in part on a concluding instruction given with all the other

instructions telling the jurors that what the court said during trial should not be deemed to

reflect its views on the evidence: “Do not take anything I said or did during the trial as an

indication of what I think about the facts, the witnesses or what your verdict should be.”

(CALCRIM 3550, quoted at RB 68; italics added.) This in no way addressed the issue of

the court’s statements on the video which were admitted as evidence as opposed to the

court’s non-evidentiary comments during the trial.

The instruction did not say the court’s video comments were not evidence because

the court believed they were proper evidence. That is why Judge Fidler denied the

defense request to instruct the jury that he was not a witness for either side. (47 RT 9319-

9321.) In doing so, he recognized that he was indeed a witness for the prosecution. Nor,

of course, was the jury “repeatedly instructed that they were not to consider [Judge

Fidler’s] statements for the truth of the matter asserted, but merely to give context to

[Lintemoot’s] statements,” as was the case in Turner. (8 Cal.4th at 192; see also People v.

Gutierrez (2009) 45 Cal.4th 789, 822-823 [noting the limits of a court’s power to

comment on evidence per article I, §10 of the Calif. Constitution and making comments

on evidence should make clear that his views are not binding but advisory only.])

The language of the cursory, untimely and off-point instruction could not cure the

error. As stated in Berger v. U.S. (1935) 295 U.S. 78, 85, "It is impossible to say that

the evil influence upon the jury of these acts of misconduct was removed by such mild

judicial action as was taken.” (See also People v. Bolton (1979) 23 Cal.3d 208, 215, fn. 5:

17

the judge “should aim to make a statement to the jury that will counteract fully whatever

prejudice to the defendant resulted from the prosecutor's remarks.”) Given that the trial

court saw no issue at all with the prosecution’s use of its video statements as evidence, it

is not surprising that Judge Fidler refused to inform the jury that his videotaped

statements were not evidence and should be ignored.

3. Respondent’s Assessment of the Trial Facts

Respondent’s statement of facts (RB 1-54) takes full advantage of the legal

presumption that credibility issues must be deemed decided in its favor. (People v.

Johnson (1980) 26 Cal.3d 557, 558 [when insufficiency of evidence is at issue, the

reviewing court "must review the whole record in the light most favorable to the

judgment"].) That rule, however, does not carry over into a prejudice calculus. Rather,

“[t]he facts ... must be considered in some detail because it is apparent from the

circumstantial nature of the evidence and the conflicting inferences which may be drawn

therefrom, that a very close case is presented, and, therefore, any error committed by the

trial court which materially affected the substantial rights of defendant and might have

resulted in a miscarriage of justice, must be deemed prejudicial and ground for reversal.”

(People v. Weatherford (1945) 27 Cal.2d 401, 403.)

Respondent relies on the “confession” to De Souza to argue the error is harmless.

(RB 69.) Suffice to say, this evidence came in at the first trial and the jury did not

convict. De Souza testified appellant said: “I think I killed somebody.” (14 RT 2532.)

But the strength of that evidence was undermined by: DeSouza’s lack of command of the

English language; his anxiety at the moment he heard a statement from appellant; the loud

sounds from the fountain between him and appellant; appellant being hard to understand

when drinking; appellant being drunk; and DeSouza telling police officers due to his

imperfect English he could not be sure what appellant said to him. (See AOB pp. 13-14.)

Furthermore, if appellant Spector witnessed Lana Clarkson kill herself accidentally or

18

suicidally with Spector’s weapon, he could well exclaim: “I think I killed somebody,”

without in any way meaning that he had fired the fatal shot himself.

Appellant’s erratic, drunken and confused conduct after the shot was fired (see RB

69) was consistent with a person facing the horror of a suicide or accidental shooting.

Wiping Clarkson’s face with a rag bespeaks of someone trying to render aid rather than to

facilitate a killing.

Reliance on the Evidence Code § 1101(b) evidence (RB, at 70) is reliance upon

erroneously admitted and instructed upon evidence. (See AOB, at 64-109, and Argument

II in this Reply Brief.) Suffice it to say here that appellant’s instances of misconduct with

the five women, taken from almost 30 years of his life and in no instance more recently

than eight years prior to Clarkson’s death, show no instance of ever putting a gun in a

woman’s mouth, much less firing it.

Respondent’s reliance on the medical examiner’s finding that this was a homicide

(RB, at 69-70) deserves a detailed response, given that it demonstrates how the medical

examiner’s position, based on pressure from the District Attorney’s office, continually

morphed over the years to conform to the latter’s theory.

Dr. Pena was the medical examiner. The original draft of his autopsy report had

no opinion regarding the manner of Clarkson’s death. (22 RT 4276.) Indeed, on July 22,

2003, six months after Clarkson’ death, Dr. Pena wrote that the physical evidence in the

case would not support a finding of homicide. (22 RT 4280.)

When Dr. Pena arrived at the scene on the day of Clarkson’s death, he was told

appellant confessed to the shooting. (21 RT 4049.) Dr. Pena admitted that after hearing

this, he had an inclination to prove that assessment correct. (21 RT 4089.) Thus, he was

hoping the shot was not intraoral, common in suicides, because an external shot would be

more consistent with a homicide. (21 RT 4050.) The alleged statement by appellant to De

Souza was one of the most important things in his consideration of the case. (22 RT

4298.)

19

Despite testifying that “from a medical standpoint” that he “couldn’t tell” whether

Lana Clarkson was holding the gun when it fired (21 RT 4052), Dr. Pena claimed he was

able to render an opinion of homicide by late July 2003 because he had received

significant information from Sheriff’s investigators. (22 RT 4288.) In support of his

non-scientific homicide opinion, Dr. Pena said he thought women did not commit suicide

by intraoral gunshots. However, after he filed his report in 2003, the Coroner’s office did

a study on the topic and found that such female suicides did occur with some frequency.

(32 RT 6233-6234.) Of all female suicides in Los Angeles County during the three years

of study, suicides from intraoral shootings amounted to 30% of them. (23 RT

4481–4482.)

Dr. Pena agreed the lack of a suicide note does not mean anything. But he told the

first jury that because there was no note he was aided in concluding it was a homicide

despite his knowledge that most suicides do not leave notes. (22 RT 4300-4301.) He also

told the jury it was a homicide because women do not like to shoot themselves in the head

— despite the evidence it occurs. (22RT 4303-4305.)

In fact, 99% of intraoral shootings are suicides. (34 RT 6503, 40 RT 7692.) Dr.

Werner Spitz never in his entire career (65,000 autopsies supervised or personally

completed) saw an intraoral homicide with a gun. (34 RT 6501.) Dr. DiMaio testified

that in his entire career, including 35,000 autopsies, he saw only three intraoral

homicides, and never one with a snub-nose revolver. (40 RT 7693, 7694.) Dr.

Lakshmanan, the Coroner, with 17 years of experience, testified he never saw one; he

testified intraoral gun wounds are almost always self-inflicted. (31 RT 6055.)

As to the existence of bruises on Clarkson’s arms, Dr. Pena originally could not

identify the bruises as having anything to do with a struggle. (The house showed no signs

of struggle between appellant and Clarkson.) He testified it was possible the bruises

were caused when Clarkson’s arms hit the chair after the shot or that she had received

them earlier at work. (21 RT 4124-4128.) Before the grand jury, he testified he could not

20

give an opinion as to the cause of the bruises. (21 RT 4118-4119.) He also previously

testified he could not tell whether the bruises occurred at the same time. (24 RT 4691.)

But at appellant’s trial, he told the jury he was sure they were from a struggle and not just

consistent with a struggle (21 RT 4118), explaining, “I have had time to think again over

the number of years that have passed and seen more.” Then he retreated by saying the

bruises could be “consistent with struggle.” (21 RT 4142.) He admitted there were “other

readily available causes for these bruises.” (24 RT 4684-4685.) Indeed, he agreed with9

studies concluding that the timing of bruises cannot be precise. (21 RT 4140.) Further,

none of the State’s criminalists who closely examined and photographed Clarkson’s body

at the scene noted bruises.

As to the alleged bruise on the tongue, when Dr. Pena looked at the body during

autopsy, he gave no thought to a mark on Clarkson’s tongue more than two inches inside

her mouth. For the following four years, he gave it no significance. But the prosecution

called him and pointed it out. Then it became blunt force trauma — “symmetrical

bruises on the right side of the tongue." (21 RT 4014; 21 RT 4090-4091.) Dr. Pena

previously told the prosecution the bruise was consistent with an explosion in the mouth

from the shot, but he said nothing about this on direct examination to the jury. Instead, it

was blunt force trauma. Only on cross-examination was it revealed the bruise was

consistent with a gun shot going off in the mouth. (21 RT 4095.) His boss, Dr.10

Dr. Spitz and Dr. DiMaio testified it is impossible to time bruises as Dr. Pena did9

in order to claim they occurred at the time of the shooting. (Dr. Spitz, 34 RT 6533; Dr.

DiMaio, 40 RT 7736.)

Dr. Spitz testified the bruise (or tear) was caused by the bullet and exploding10

gases. (34 RT 6535.) The discoloration was not caused by blunt force trauma. (34 RT

6537.) Indeed, a gun with a 1.5 inch barrel could not have caused trauma that far back in

Clarkson’s mouth – over two inches. (34 RT 6537-6538.) Accord Dr. DiMaio. (40 RT

7718.) A prosecution criminalist testified that when the gun was inside Clarkson’s

mouth, it was inside no more than 1.5 inches (21 RT 3920), and probably less because the

“crane” on the underside of the barrel would prevent an entry of 1.5 inches. (21 RT 3968-

21

Lakshmanan, testified that not only was there no evidence of trauma to Clarkson’s mouth

that would suggest the gun was forced in, but that he was unable to find a case in which a

gun was forced into someone’s mouth and discharged. (33 RT 6452; 32 RT 6193.)

Finally, the rejection of a psychological autopsy was significant also in showing

the result-directed nature of Dr. Pena’s testimony. In 2003, the Coroner was told by the

District Attorney not to pursue a psychological autopsy until the prosecution completed

its inquiry. (32 RT 6221-6222.) But four days later, the prosecution informed the Coroner

that it could release the autopsy report with the homicide conclusion. (32 RT 6223-6225.)

A year later, the Coroner was provided an abundance of relevant evidence concerning

Clarkson’s health problems, her depressed mood, alcohol abuse, chronic pain and injury,

career decline and despair over it, and acute financial distress that was not considered

prior to the release of the homicide conclusion in September 2003. When confronted11

with this material at trial, Dr. Pena said it would not alter his opinion of homicide. (22

RT 4331-4335.)

Dr. Pena’s opinion started with no cause of death, but over the years it morphed to

fit the prosecution theory. This phenomenon is not unique to this case. As the Supreme

Court noted in Melendez-Diaz v. Massachusetts (2009) 129 S. Ct. 2527, 2536: ‘A forensic

analyst responding to a request from a law enforcement official may feel pressure--or

have an incentive--to alter the evidence in a manner favorable to the prosecution. ‘

(Italics added.)

//

3969.) Further, there was no evidence of injury to the outside of her mouth.

Respondent’s characterization of the emails, witness testimony of Greg Sims11

and Jennifer Hayes (RT 8087) and other evidence as mere “glimpses” of Clarkson’s

temporary condition (RB 71) is meritless. (See AOB pp. 29-35 for a description of this

evidence.)

22

4. The Difference Between The First and Second Trials

As demonstrated in appellant’s opening brief, the one notable difference in the

evidence between the first and second trial was the testimony at the retrial of Lynne

Herold that the blood spatter purportedly found on the back of Lana Clarkson’s wrists

was inconsistent with a self-inflicted wound. This testimony, of course, was wholly

dependent on that of Lintemoot concerning the blood spatter. And in closing the

prosecution characterized the blood spatter testimony as the most important evidence in

the case: “Why is it the defense needs to go through this long process of machinations of

truth on this? Because this is the single piece of evidence they cannot explain away. It is

absolutely inconclusive with Lana Clarkson holding the gun.” (47 RT 9297; italics

added.)

In People v. Brooks (1979) 88 Cal.App.3d 180, 188, after a first trial resulted in a

hung jury, the erroneous admission of threat evidence at retrial required reversal, despite

the identification testimony of one witness to the charged robbery, because the error could

have confused the issues and misled the jury. (See also People v. Ogunmola (1989) 39

Cal.3d 120, 124 [finding result before other jury proved “the effect of the error with

seeming laboratory precision”]; Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19, 33

[finding prejudice because juries had deadlocked in petitioner’s first two trials and the

only “substantial difference” was counsel’s ineffectiveness; relying on these “actual

rather than hypothetical reference points”].)

Here, the key corroboration offered for Lintemoot’s confused and confusing

testimony was the evidence of Judge Fidler’s statements and gestures on the videotape.

The prosecution argued this as the most important evidence in the case, thereby making

the judge its key witness. Absent that evidence, it is highly probable that the result at

appellant’s second trial would have been no worse than it was at the first — a hung jury.

Reversal is required here.

23

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR UNDER

STATE AND FEDERAL LAW BOTH IN ADMITTING EVIDENCE OF

UNCHARGED BRANDISHING OFFENSES AND IN INSTRUCTING THE

JURY ON HOW THAT EVIDENCE COULD BE CONSIDERED

A. Introduction

In its brief, respondent does not dispute that California maintains its long-standing

statutory ban on character evidence in the form of proof of uncharged offenses (Evid.

Code §1101(a)), and that the “codification of the common law rule . . . is absolute where

it applies.” (People v. Alcala (1984) 36 Cal.3d 604, 631. [Emphasis added]) The rule

against character-conformity evidence is “designed to prevent the jury from assessing a

defendant’s present guilt on the basis of his past propensities.” (Greenboam v. State

(Ind.App. 2006) 766 N.E.2d 1247, 1252 [citation omitted]; cf. People v. Younger (2000)

84 Cal.App.4th 1360, 1382 [“neither prior offenses nor propensity prove guilt of a

charged offense”]; 1 Wigmore, Evidence (3rd ed. 1940) § 192, p. 642 [it “has long been

accepted in our law . . . [t]hat the doing of one act is in itself no evidence that the same or

a like act was again done by the same person”] (internal quotation marks omitted).)

Admittedly, the §1101(a) ban on uncharged offense evidence to prove bad

character does not prohibit the admission of evidence of prior offenses to prove the issues

listed in Evidence Code §1101(b) — identity, motive, intent, etc. — when those issues are

fairly in dispute, but California jurisprudence has struggled mightily to ensure that

subsection (b) is not so broadly interpreted so as to swallow the absolute evidentiary bar

contained in subsection (a). For that reason, our Supreme Court has directed trial courts to

employ “extremely careful analysis” before admitting such evidence due to the great risk

of prejudice such evidence carries (People v. Ewoldt (1994) 7 Cal.4th 380, 404), and to

admit that evidence only “with extreme caution” and only after resolving “all doubts

about its connection to the crime charged . . . in the accused’s favor.” (Alcala, 36 Cal.3d

at 631.)

24

The “extremely careful analysis” described in Ewoldt requires that a trial court

“look behind the label” advanced by the party proffering uncharged-offenses evidence.

(People v. Thompson (1980) 27 Cal.3d 303, 316; see also People v. Guerrero (1976) 16

Cal.3d 719, 724 [“[A]dmission of other crimes evidence cannot be justified merely by

asserting an admissible purpose”].) As the commentator relied upon by respondent (RB at

75) himself states, “[t]o determine whether the asserted theory [of admissibility of

uncharged acts] qualifies, the trial judge must trace the entire chain of inferences

underlying the theory. The theory passes muster if the inferential path between the item

of evidence and a fact of consequence in the case does not require any inferences as to

the defendant’s personal, subjective character.” (Imwinkelried, “An Evidentiary

Paradox: Defending the Character Evidence Prohibition by Upholding a Non-character

Theory of Logical Relevance, the Doctrine of Chances” (Jan. 2006) 40 U.Rich. L.Rev.

419, 429 [emphasis added]; see also People v. Thompson, supra, 27 Cal.3d at p. 317

[“The inference of a criminal disposition may not be used to establish any link in the

chain of logic connecting the uncharged offense with a material fact.”]; United States v.

Sampson (3rd Cir. 1992) 980 F.2d 883, 887 [“If the government offers prior offense

evidence, it must clearly articulate how that evidence fits into a chain of logical

inferences, no link of which can be the inference that because the defendant committed . .

. offenses before, he therefore is more likely to have committed this one”]; Wright &

Graham, supra, § 5239 [“evidence of other crimes can be used to prove the conduct of a

person if the inference to conduct can be made without the need to infer the person’s

character as a step in the reasoning from the other acts to the conduct in issue”].)

Given the nature of the state’s response to appellant Spector’s multiple claims of

error concerning the admission of a plethora of inflammatory uncharged offense evidence

at trial, the importance of this appeal to California evidence law is most evident. As

appellant will demonstrate below, the trial court, in admitting the avalanche of uncharged

offense evidence, much of it concerning alleged incidents occurring decades before the

25

charged offense, was far from “extremely careful” in its analysis. Rather, the court

accepted the prosecution’s intoning of admissible purposes without serious consideration

of whether the proffered theories of admissibility actually rested on inferences about

appellant Spector’s character and personal history. If endorsed on appeal, the trial court’s

various rationales for admitting the §1101(b) evidence would effectively eliminate any

and all hurdles to the admission of character evidence in a criminal trial in California.

That is particularly so given the trial court’s instructional rulings, which resulted in a jury

charge on the consideration of uncharged offense evidence unlike any ever previously

given in a trial in this state.

This Court neither should nor can engage in the judicial repeal of §1101(a) that

respondent urges upon it. Upon a finding of error, the Court must reverse because

respondent virtually concedes that, if Spector is correct regarding the uncharged-offenses

evidence, the error was prejudicial. (See RB at 72 [acknowledging obvious fact that the

uncharged offenses were “crucial” to the jury’s determination of Spector’s guilt].)

B. The Trial Court’s Instruction That The §1101(b) Evidence

Could be Used To Establish “That the Defendant Was the

Person Who Committed The Offense Alleged In This Case”

Requires Reversal

As respondent concedes, at trial, “the main issue was which of two persons,

Clarkson or appellant, was the shooter” (RB, at 87); that is to say, the core issue in this

case was one of identity. The §1101(b) evidence, however, was inadmissible on the

issue of identity of the person who caused the firearm to discharge in Ms. Clarkson’s

mouth because the prosecution could not and did not meet the “distinctive signature” test

required by People v. Ewoldt (1994) 7 Cal.4th 380, 404 (“The greatest degree of

similarity is required for evidence of uncharged misconduct to be relevant to prove

identity ... The pattern and characteristics of the crimes must be so unusual and distinctive

as to be like a signature.”) In none of the prior seven incidents did appellant place a gun

in anyone’s mouth, nor did he ever cause a gun to discharge. After initially indicating that

26

the uncharged evidence might be admissible on the issue of identity, the trial court

correctly reversed itself on that issue (46 RT 9129-9130), and respondent now agrees that

“identity was not an admitted purpose for the prior act evidence in this case.” (RB, at 87

fn. 13; see also RB, at 88: reference to “the trial court ruling excluding identity as a

ground for admission of the prior acts evidence.”)

Because the uncharged offense evidence was not, and could not have been,

admitted to prove identity, just as it was not, and could not have been, admitted to prove

intent or common plan and scheme, the trial court erred if its instructions permitted the

jury to consider the §1101(b) evidence as to these issues. People v. Armstead (2002) 102

Cal.App.4th 784 (reversible error if jury instruction retroactively expands purpose for

which evidence was admitted.) The trial court did just that by instructing the jury that it

could rely on the uncharged offenses to find that “the defendant was the person who

committed the offense alleged in this case.”

As respondent apparently concedes, no California court has ever previously used

the phraseology at issue here in an instruction on uncharged offense evidence. According

to respondent, this instruction did not permit the jury to consider the uncharged offenses

on the issue of the identity of the person who pulled the trigger (or on the issues of intent

or common plan and scheme) because, essentially, the words did not mean what they said.

(RB at 86-89.) Respondent claims that the challenged phrase was part of a complete

sentence authorizing the jury to consider the uncharged offenses for the purpose of

“[e]stablishing that the death of Lana Clarkson was not the result of accident, mistake, or

suicide, but rather that the defendant was the person who committed the offense alleged

in this case;” in context, the final phrase purportedly did no more than “properly explain

the only reasonable inference from finding that Clarkson’s death did not result from her

accident, mistake or suicide. If Clarkson did not die by one of those three means, then

appellant killed her, and this is all the instruction conveyed.” (RB at 87.)

There are two gaping flaws in respondent’s argument. First, the words “the

27

defendant was the person who committed the offense alleged in this case” clearly did add

a fourth (and unbounded ) use as to which the §1101(b) evidence could be put by the jury.

Second, if the challenged phrase indeed did have the meaning that respondent attributes to

it, the instruction plainly was constitutionally flawed under well-established authority of

the United States and California Supreme Courts.

Turning to respondent’s first contention — that the challenged phrase added to

“not the result of accident, mistake, or suicide” did not permit the jury to consider the

§1101(b) evidence for anything other than those three factual issues — one must ask why,

then, did the prosecution include those words in its instructional request and why did the

trial court convey them to the jury over the defense’s vigorous objection? Surely no

reasonable juror would conclude that the court was providing it with a meaningless

portion of an instruction. On the contrary, as respondent points out in another context, a

reasonable juror is presumed to follow the instructions he or she is given. (RB, at 61,

citing People v. Harris (2005) 37 Cal.4th 310, 350.) Defense counsel had been

extremely precise in articulating the problem with the language at issue (48 RT 9617), but

the court gave it anyway because that language “was exactly what [it] had in mind.” (48

RT 9618.) Clearly, the trial court believed that the language at issue carried some import.

What Judge Fidler had in mind, and expressly so, was to permit the jury to consider the

uncharged offenses on the question of the identity of the shooter, but to avoid the close

appellate scrutiny that the term “identity” would draw under Ewoldt. (46 RT 9129-9131.)

Furthermore, when the trial court suggested dropping “identity” from its

instruction due to the legal hurdle Ewoldt posed to the term’s use, the prosecution agreed

on the ground that the phrase used by the trial court conveyed precisely the same

meaning. (See 46 RT 9132 [prosecution accedes to trial court’s suggestion of instructing

jury on identity theory without calling it that because such instruction would, nonetheless,

permit it to argue that “the prior incidents establish to this jury who did this” because

“what[ever] you think about 1101 evidence in any of these categories, however you want

28

to label it, [it] really does go to proving identity anyway”].) Given the prosecution’s

position below, respondent should be estopped from even arguing that this instruction did

not authorize the jury to consider the uncharged offenses under an impermissible identity

theory. (People v. Dees (1990) 221 Cal.App.3d 588, 598 [prosecutor estopped from

asserting a position on appeal it conceded at trial].)

Moreover, respondent’s claim the jury was not permitted by the trial court’s

instructions to consider the other offense evidence on the issue of identity is contradicted

by its assertion elsewhere in its brief that: “The evidence that appellant had committed

seven prior assaults with a gun against five women under circumstances similar to the

charged offense tended to show that Clarkson’s death...was the result of a deliberate, life

threatening act by appellant.” (RB, at 84.)

Respondent next claims, rather remarkably, that the prosecution’s closing

arguments did not urge the jury to use the uncharged offenses as proof of the identity of

the person who shot Clarkson because, instead, “it spoke directly to appellant’s motive for

threatening Clarkson with the gun. . . .” (RB at 88.) That claim is irreconcilable with the

record. (See AOB at 83-85, 108-109, fn. 30, citing, inter alia, 47 RT 9236 [“Lana’s is a

murder that was waiting to happen in Phil Spector’s world of conscious disregard for

human life”]; 48 RT 9547 [“Phillip Spector does what he does time after time, after time,

after time, after time, after time and again. . . . So he pulls a gun, and he threatens Lana

Clarkson with it. . . . And this time, this time that gun goes off.”].)

Respondent also claims that Spector forfeited his claim that the prosecution used

the other offense evidence to argue identity, based on the failure of defense counsel to

timely object and request an admonition. (RB at 87.) But Spector has not raised here an

independent claim of prosecutorial misconduct on the identity issue. His point, rather, is

that this misuse by the prosecution of the uncharged offenses established the prejudice of

the trial court’s instruction that permitted the prosecution to argue, and the jury to find,

that the uncharged offenses proved that it was Spector who had shot and killed Clarkson.

29

(See AOB at 92 [citing the prosecution’s argument to demonstrate the effect of the

erroneous instruction].) In any case, prior to its closing argument, the prosecutor had

already informed the court that it intended to use the improvised instruction to argue

identity. (46 RT 9132.) Any objection to a tactic of the prosecution as to which the court

had already indicated its approval would thus have been futile. (Abbaszadeh, 106

Cal.App.4th at 648; Sandoval, 87 Cal.App.4th at 1433, fn. 1.)

With its alternate defense of the trial court’s novel instruction, respondent digs

itself a huge constitutional hole. According to respondent, the challenged language in the

improvised instruction, properly read, “did not relate to identity, but was connected to the

first clause....” (RB, at 87.) Rather than adding an additional issue on which the other-

offense evidence could be considered — who was the shooter? — the challenged

language, says respondent, merely supplied the necessary consequence of the jury’s

consideration of the issue of the absence of accident, mistake, and suicide. Respondent

contends that the instruction informed the jury that the §1101(b) evidence must be

considered for the purpose of “[e]stablishing that the death of Lana Clarkson was not the

result of accident, mistake, or suicide”... because “if Clarkson did not die by one of these

three means, then appellant killed her.” (RB, at 87.) “[A]ll the trial court’s instruction

conveyed,” respondent asserts, was the fact that “the only reasonable inference from

finding that Clarkson’s death did not result from her accident, mistake or suicide” was

that “appellant killed her.” (Id.) Thus respondent interprets the challenged instruction as

informing jurors that if they found fact A — a lack of accident, mistake, or suicide —

then they were to infer fact B — Spector shot Clarkson — because B was the only

reasonable inference to be drawn form the finding of A.

But instructing jurors, as here, that if they find one intermediate fact — the

absence of accident, mistake, or suicide — they must or should find “that the defendant

was the person who committed the offense alleged in this case” creates a legal

presumption, either conclusory or rebuttable in nature. Incorporating either form of legal

30

presumption in a jury instruction is federal constitutional error. In Sandstrom v. Montana

(1979) 442 U.S. 510, the high court held unconstitutional a presumption in jury

instructions that “the law presumes that a person intends the ordinary consequences of his

voluntary acts” because it shifted the prosecution’s burden on the issues of purpose and

knowledge at the petitioner’s murder trial. In finding unconstitutional the presumption

described in the instructions, Sandstrom cited the unequivocal statement of In re Winship,

397 U.S. 358 (1970), where the Court “explicitly [held] that the Due Process Clause

protects the accused against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is charged.” 442 U.S. at 520,

citing Winship, 397 U.S. at 364 (emphasis added in Sandstrom). Sandstrom acted on the

warning in County Court of Ulster County v. Allen, 442 U.S. 140 (1979) that no

presumption should be permitted to “undermine the factfinder’s responsibility at trial.”

442 U.S. at 156.

The California Supreme Court has been stringent in its policing of rebuttable

presumptions, holding in People v. Roder (1983) 33 Cal.3d 491, that a statutory rebuttable

presumption regarding guilty knowledge of receipt or purchase of stolen property was

unconstitutional in light of Ulster. Paying “careful attention to the words actually spoken

to the jury,” as Ulster requires, the Court first found that the trial court’s instructions

“could be read to suggest that the presumption of guilty knowledge was simply a

permissive inference, which the jurors could, but were not required to, draw.” (Id., at 502-

503.) That did not end the matter, however. The Court continued:

The jury could certainly have understood the [trial court’s

explanation of the presumption] to mean that once the

prosecution proved the basic facts, the burden shifted to the

defense to raise a reasonable doubt as to the ultimate fact;

conversely, if the defense raised no such doubt, the

prosecution’s case on the issue of knowledge was deemed

established as a matter of law on the basis of the

circumstantial evidence which, as a matter of common sense,

31

allowed, but by no means compelled, a finding of the ultimate

fact. If that was the jury’s understanding, the presumption

would not have operated merely as a permissive inference....

Accordingly, we conclude that from the instructions given in

this case the jury could have reasonably interpreted the

presumption . . . as relieving the prosecution of its burden of

proving every element of the offense beyond a reasonable

doubt. As Ulster County and Sandstrom establish, this was

constitutional error.

(33 Cal. 3d at 504.)

If respondent is taken at its word, the instruction the trial court devised to avoid

Ewoldt scrutiny of its admission of §1101(b) evidence directed the jury to find the

defendant guilty of the “charged offense evidence in this case” — murder — upon

finding Clarkson’s death was not the result of accident, mistake, or suicide. Even if the

instruction did not require the jury to draw that inference, as in Roder, “the jury could

have reasonably interpreted the [instruction] . . . as relieving the prosecution of its burden

of proving every element of the offense beyond a reasonable doubt.” (33 Cal. 3d at 504.)

The trial court thereby committed federal constitutional error requiring reversal.

Finally, in response to Spector’s claim of procedural error — that the trial court

only announced its decision to give the instruction that the jury could consider the

uncharged offenses for the purpose of establishing that “the defendant was the person

who committed the offense alleged in this case” after defense counsel had finished his

closing argument, unfairly giving him no opportunity to address it with the jury (AOB , at

94-96) — respondent asserts that counsel had sufficient notice of the trial court’s

intention prior to his closing. (RB, at 88-89.) That notice consisted of the trial court’s

statement, prior to closing arguments, that it would instruct “on the absence of suicide or

mistake . . . ” (RB at 88 [citing 46 RT 9218].) That is the only notice that defense

counsel got.

32

Although the court ambiguously added after the foregoing statement, “and

basically show, under the People’s theory, that it’s Mr. Spector who is responsible for the

act without using the word ‘identity,’ per se, which would still be appropriate” (ibid.),

nowhere in the entire statement is there an express pronouncement that the court was

going to instruct on the latter point. Surely no reasonable defense counsel would have

construed the statement as such given that no court in the history of California had ever

given such an instruction. Spector’s constitutional right to present a full and complete

closing argument cannot not be sacrificed on so flimsy an altar. Reversal is required on

this ground as well.

C. The Uncharged Offenses Were Not Admissible Under an

“Absence of Mistake, Accident, or Suicide” Theory

Spector contends that it was error to admit the uncharged offenses as proof of “the

absence of accident, mistake, or suicide.” (AOB at 96-97.) Nowhere is Ewoldt’s call for

“extremely careful analysis” more germane, because respondent’s defense of the trial

court’s ruling, while asserting an admissible purpose, quickly degenerates into self-

contradiction and illogic.

The proper use of §1101(b) evidence to prove the absence of accident or mistake is

well-established in California jurisprudence. The classic context in which the issue arises

is when a defendant admits that he committed an act alleged to be criminal — a sexual

touching, the discharge of a rifle, the scalding of a child — but claims he did so by

accident or mistake, rather than with the intent the law requires to commit that crime. If

the defendant has committed similar bad acts in the past, evidence of those crimes is

admissible to prove that the defendant’s conduct in the charged incident was indeed

intentional rather than accidental. (See CALCRIM 375 [permitting jury to consider

uncharged offenses on issue of whether “defendant’s alleged actions were the result of

mistake or accident”] (emphasis added).)

Thus, the absence of accident or mistake is the flip side of the presence of intent.

33

Despite the different phraseology — “absence of accident or mistake” versus “intent” —

the case law is clear that the standard for admitting evidence in this context is one and the

same. Indeed, in the primary case relied on by respondent, People v. Whisenhunt (2008)

44 Cal.4th 174 (RB, at 84), the court rejected the defendant’s attempt to treat “intent and

absence of accident as distinct and separate bases for admissibility,” instead finding that

they “merely reflect[] two ways of describing the same relevant issue in that case, namely,

that defendant performed the acts that killed [the victim] intentionally rather than

accidentally.” (Id. at pp. 203-204 [emphasis added].) (See also Wright & Graham,

supra, § 5247 [“‘[A]bsence of mistake or accident,’ is simply a special form of the

exception that permits the use of other crimes to prove intent.”] (emphasis added); ibid.

[“The justification for admitting evidence of mistake or accident is the same as for the

other exceptions involving proof of the defendant's state of mind. When [properly]

offered for this purpose, no inference to any conduct of the defendant is required and, in

addition, in many cases the evidence does not require any inference as to the character of

the accused.”] (emphasis added; footnotes omitted).) 12

In Whisenhunt, the defendant raised the claim that he had caused the victim’s

injuries in his opening statement, which “expressly placed the question of accident in

issue for the prosecution’s case-in-chief . . . .” (44 Cal.4th at 204.) Here, Spector never

contended that if he put a gun in Lana Clarkson’s mouth and discharged it, that act was

not purposeful, but rather the result of an accident or mistake. His consistent defense was

that Clarkson, not he, put the gun in her mouth. Spector’s case is indistinguishable from

People v. Balcom (1994) 7 Cal.4th 414 (where intent to rape was never in issue, as

discussed in AOB, at 96-97), in that, if the jury believed that Spector put the gun in

Clarkson’s mouth and pulled the trigger, the prosecution needed no other evidence

Without appreciating its significance in the instant context, respondent later in its12

brief acknowledges that absence of accident and intent are two ways of describing the

same issue. (RB at 86.)

34

regarding his intent. When respondent attempts to distinguish Balcom (RB at 85, fn. 11),

it makes no effort to explain how intent was any more at issue in Spector’s case than in

Balcom’s, and for an obvious reason — it cannot.

Furthermore, in this case uncharged offense evidence would have been relevant

only if that evidence concerned incidents in which Spector had intentionally fired a gun or

placed one in someone’s mouth, thereby tending to disprove a claim of accidentally

killing Clarkson (which, of course, Spector never made). None of the seven prior

incidents admitted into evidence against Spector involved any such conduct. And the trial

court made no finding that the other offense evidence passed the test for admission on the

issue of intent, nor did it admit the evidence to prove intent.

After citing and discussing Whisenhunt, respondent effectively admits that the

admission of the §1101(b) evidence cannot possibly be justified by that precedent, for it

asserts that the probative value of the evidence was not in the first instance to prove

Spector’s intent or a lack of accident or mistake on his part, but rather to prove his

identity as the shooter, which in turn would prove that Lana Clarkson did not kill herself

by accident, mistake, or suicide. Admitting that at trial “the main issue was which of two

persons, Clarkson or appellant, was the shooter” (RB, at 87), respondent asserts that the

“evidence that appellant had committed seven prior assaults with a gun against five

women under circumstances similar to the charged offense tended to show that

Clarkson’s death was not in fact a result of her accident or mistake but rather was the

result of a deliberate, life-threatening act by appellant.” (RB, at 84.) 13

In response to Argument II.B., above, respondent argued that the instruction “the13

death of Lana Clarkson was not the result of accident, mistake, or suicide, but rather that

the defendant was the person who committed the offense alleged in this case” (48 RT

9674) meant simply that if the jury found no accident, mistake, or suicide, it could

conclude that Spector was the shooter. In the context of the present argument, however,

respondent effectively admits the position that the §1101(b) can prove the absence of

accident, mistake, or suicide only by proving that Spector was the shooter. In traveling

35

It is, of course, obvious that none of the uncharged offense evidence, dealing with

incidents involving Spector and other women years before he met Lana Clarkson, could

shed any light on whether Clarkson was likely to kill herself intentionally or by mistake.

Respondent is correct that §1101(b) evidence was relevant only to the extent that it could

establish Spector’s identity as the shooter. But in order to gain admission of the §1101(b)

evidence on the identity of the shooter, the prosecution would have had to meet the

Ewoldt standard for the admission of other offense evidence on that issue, or at least what

respondent concedes is “the stricter ‘common plan or scheme’ standard for admissibility,”

rather than the “most lenient ‘intent’ standard.” (RB, at 85.) The prosecutor indisputably

plainly failed to meet either.

This case is thus on all fours with People v. Deeney (1983) 145 Cal.App.3d 647,

655, which respondent completely misconstrues. (RB, at 84.) The court there reversed a

manslaughter conviction based in part on the admission of extrinsic acts evidence, which

had been admitted on, among other theories, absence of mistake. One night, the

defendant and his wife were heard to have had a loud argument; the wife died of a brain

hemorrhage the following day. (Id. at 651.) The defense was that she had fallen because

she was drunk, that is, that her death was an accident. (Ibid.) The court found that the

admission of two instances of the defendant’s past abuse of his wife was prejudicial error

because the issue posed by the evidence was not whether the defendant’s conduct in

killing his wife was accidental, but whether the victim, an alcoholic, accidentally fell and

caused her fatal injuries. (Id., at 655.)

Contrary to respondent’s mischaracterization of that holding, the Deeney court did

not find the evidence of past abuse “relevant to show absence of accident” (RB at 84) and

did not find error merely because the trial court had failed to “give an appropriate limiting

full circle, respondent’s arguments trip over themselves.

36

instruction.” (Ibid.) (See Deeney, supra, 145 Cal.App.3d 647 at p. 651 [“the evidence of

Deeney’s prior conduct [was] erroneously admitted”]; id. at p. 654 [“The People

incorrectly contend this evidence was relevant to facts such as . . . absence of mistake or

accident”].) See also United States v. Manafzadeh (2d Cir. 1979) 592 F.2d 81, 88

[holding inadmissible evidence of other crimes to prove absence of mistake or accident

where defendant did not claim he committed charged acts as result of mistake or accident,

but instead denied doing charged acts altogether].) As in Deeney, reversal is required in

this case.

D. The Uncharged Offense Evidence Was Inadmissible on a Motive

Theory

That acceptance of respondent’s position on the admissibility of the §1101(b)

evidence would mean the end of the ban on character evidence is never more clear than in

its argument concerning motive. That is true for at least three reasons.

First, like the trial court, respondent on appeal equates a character trait, as proven

by specific instances of conduct, with an emotion or feeling that leads one to commit a

crime, which in turn equates with a motive to commit the crime. Under respondent’s

analysis, any and all “bad character” evidence that is barred from admission by the

§1101(a) ban on character evidence would constitute an emotion that leads one to commit

crimes, and thus would be admissible under §1101(b)’s “motive” category.

Assume a victim is shot to death in a drive-by shooting in 2010. The defendant and

the victim were known to have exchanged hostile words in the past, and he is charged

with the offense, with identity being the sole issue at trial. The prosecution moves for the

admission of evidence of a series of bar fights involving the defendant and third parties

ten years earlier in which an initial verbal altercation escalated into defendant’s infliction

of serious injury on his adversaries. The proffered §1101(b) evidence could not possibly

pass muster under the Ewoldt test for the admission of other offense evidence on the issue

of identity, but is offered on the theory that the defendant’s anger is an emotion that may

37

impel or incite him to act in accordance with his state of emotion; that such emotion

constituted a motive to commit the charged murder; and the motive evidence is relevant

to identity. If that argument were sustained, the ban on character evidence under §1101(a)

would be a dead letter, and Ewoldt with it. It simply must be the law that when other

offense evidence is offered as “an intermediate fact which may be probative of such

ultimate issues as...identity...” (RB, at 74), the standard for admission governing the

ultimate issue must apply to the intermediate fact as well.

Second, when the admission of other offense evidence turns on a foundational

showing of a similarity between the charged and uncharged offenses, the facts of the

former must be established independent of the facts of the latter. Here, respondent argues

that the offense charged against Spector must have involved conduct of explosive anger,

of which there is no evidence, because the uncharged offenses involved such conduct;

once the charged offense is assumed to be similar to the uncharged offenses, that

similarity provides the foundational basis for admitting the latter. Bootstrapping of this

sort cannot justify admission of what is indisputably a highly prejudicial form of

evidence.

Finally, respondent’s argument for the admission of the other offense evidence to

prove the intermediate fact of motive is rationalized on the assertion that motive can in

turn prove the ultimate fact of intent. (See RB, at 76: “Motive was a material fact in

dispute in this case because it was highly relevant to the central issue at trial of who had

the intent to discharge appellant’s firearm in Clarkson’s mouth: appellant or Clarkson.”)

But, as demonstrated above in Section II.C., intent was not in issue in this case and cannot

serve as a valid basis of admissibility.

//

//

38

1. The Prosecution’s Motive Theory in This Case

Necessitated an Impermissible Inference Regarding

Spector’s Character

The admitted uncharged offenses evidence was relevant only to the extent that it

supported an inference that Spector acted in conformity with a propensity to become

angry at women and assault them with firearms, which the uncharged acts purportedly

established. That is the very inference §1101(a) forbids.

The core disputed factual issue in this case was whether Spector put a gun in

Clarkson’s mouth and pulled the trigger. The state’s theory was that the uncharged acts

lead to the intermediate inference that Spector had a tendency to become angry with

women, causing him to assault them with firearms, which led to the ultimate inferences

that he experienced the same emotion, which impelled him to commit the same act, on the

charged occasion. The only way that the uncharged acts made it more likely that he

assaulted Lana Clarkson was by a “history” showing Spector to be the kind of person who

would do so. In other words, the state’s theory of admissibility requires precisely the

inference from propensity to guilt that §1101(a) prohibits.

In People v. Love (1980) 111 Cal.App.3d Supp. 1, for example, the court reversed

convictions for two solicitations of an act of prostitution based on the erroneous

admission of an uncharged prior act of the defendant’s having done so, rejecting the

state’s putative motive theory:

The fact that on the earlier date, defendant solicited Police

Officer Day for an act of sex in exchange for money (the

uncharged crime) does not tend to prove motive to commit the

two current charged crimes other than to establish that

defendant was a prostitute by profession. This is strictly

character trait evidence and its use as such is prohibited by the

general rule of Evidence Code section 1101, subdivision (a)

because it is offered to prove defendant’s conduct on a

specified occasion (I. e., the two current charges).

(Id. at p. 9.)

39

Thus, despite the fact that the defendant Love likely had the same motive for her

solicitations in both the uncharged act and the charged crimes, the court, nonetheless,

found the admission of the former reversible error because, in order to establish that

motive, the state necessarily had to rely on the forbidden character inference.

The same is true of State v. Lassiter (S.D. 2005) 692 N.W.2d 171. There, the

defendant was convicted of aggravated assault on the current boyfriend of defendant’s

former girlfriend. The prosecution introduced evidence of defendant’s assault on another

former girlfriend, in part based on a motive theory. The state argued that “the same

circumstances motivated both crimes,” specifically, that his “being ‘jilted’ was

defendant’s motive behind” both attacks because both jiltings caused him to get angry.

(Id. at pp. 177-178.) The court had no problem with the admission of the evidence of

defendant’s anger at the second girlfriend for jilting him as motive evidence tending to

explain his assault on that woman’s current boyfriend, but reversed his conviction based

on admission of the assault of his first girlfriend. Finding that it “only tended to prove

that because defendant had done it before, he must have done it again,” the court wrote:

This is the kind of propensity evidence SDCL 19-12-5 (Rule

404(b)) was designed to preclude: evidence of other crimes

cannot be used to prove conduct through an inference about

the defendant’s character, i.e., a general propensity to commit

assaults when rejected by girlfriends. Indeed, this is what

legal commentators warn against: “But where the motive

evidence is offered to prove that the act was committed or that

the defendant was the perpetrator, the only justification for

admitting the evidence under Rule 404(b) is that it is not

evidence of character; in this situation courts must be on

guard to prevent the motive label from being used to smuggle

forbidden evidence of propensity to the jury.” 22 Charles

Alan Wright & Kenneth W. Graham, Jr., Federal Practice And

Procedure § 5240, at 480 (1978) (emphasis added).

(Id. at p. 179.)

40

Respondent has no answer to this fatal problem other than to say it is no problem

at all. Respondent is wrong.

2. The Admission of the Uncharged Offenses Was

Clear Error Because of the Absence of a

Supportable Theory of Identity or Common Plan or

Design

Among the cases that respondent relies upon in its answering brief is a decision of

Division Seven of this Court, People v. Walker (2006) 139 Cal.App.4th 782, 802-805,

which respondent described with the parenthetical, “in a defendant’s trial for murdering a

prostitute, the trial court properly admitted evidence of three prior sexual assaults in order

to show the defendant’s ‘common motive of animus against prostitutes resulting in

violent battering interrupting completion of the sex act.’” (RB at 76.) A careful reading14

of Walker, however, demonstrates a fundamental flaw in the trial court’s adoption of the

state’s motive theory here.

Walker affirmed and applied the principle enunciated by Division Four of this

Court in People v. Scheer (1998) 68 Cal.App.4th 1009, and relied upon by Spector herein

(see AOB, at 100-101), that, although similarity of offenses is not essential to establish a

motive theory of the relevance of the uncharged acts, “a nexus or direct link must still

exist between the prior crime and the charged offense.” (Walker, supra, 139 Cal.App.4th

at p. 804 [citing Scheer].) The Walker court then went on to say that, where “the

commission of the prior offense is itself not the incentive for commission of the charged

crime,” it may still be admissible where it evinces the same motive (which is respondent’s

proffered theory herein), but only where such motive “may be a contributing factor in

finding a common plan or design.” (Ibid. [emphasis added; citing Scheer].)

Respondent did not get it precisely right: the Walker court sustained the14

admission of two of the prior offenses but held admission of the third improper. (See 139

Cal.App.4th at p. 805 [“[T]here was no nexus or relationship between the two

occurrences to support its admission to demonstrate motive”].)

41

Thus, respondent cites “two types of motive evidence in the area of uncharged

misconduct” — where the uncharged acts cause the charged crime, and where the

uncharged acts arise from the same cause as the charged crime. (RB, at 75.) If that

second type is to be admitted, however, it can only be with recognition of a critical

distinction between the two types of motive evidence in terms of admissibility, as

Division Four recognized in Scheer and Division Seven recognized in Walker. When

Walker upheld the admission of uncharged acts of the second type, that is, those evincing

the same cause as the charged crime, it did so only on the basis of their being contributing

factors under a “common plan or design” theory, finding “sufficiently distinctive”

common features to support an inference that the defendant committed both the

uncharged and charged acts. (139 Cal.App.4th at pp. 804-805.) In other words, when

other offense evidence is being proffered as an intermediate fact to prove an ultimate fact

with a strict standard for admissibility, such as identity or common plan or scheme, the

“motive” evidence must meet that high standard.

That was the holding of this Division in Hassoldt v. Patrick Media Group, Inc.

(2000) 84 Cal. App.4th 153, where the Court held that other offense evidence is

admissible as proof of motive only if the identity of the actor is not in dispute and that, if

that identity is in dispute, the other-offense evidence is admissible only if it meets the

most stringent test for admissibility under an identity theory (a test which the trial court

found that the prosecution could not meet as to Spector). Respondent first attempts to

evade application of this principle by asserting that the instant case “was not one where

the identity of the murderer was unknown; if there was a murderer, it was appellant.”

(RB, at 80.) That attempt is utterly specious. The identity of the person who pulled the

trigger was the material factual dispute in this case, as respondent acknowledges in its

brief. (RB, at 87; see also RB, at 97: “Either appellant shoved the gun in Clarkson’s

mouth, or she did.”) The dispositive admissibility point is “that the identity of the actor is

in dispute” (Hassoldt, supra, 84 Cal.App.4th at p. 166 [emphasis added].)

42

Respondent next seeks to evade the Hassoldt analysis by citing People v. Soper

(2009) 45 Cal.4th 759 (RB at 80), but even it does not claim that Soper overruled

Hassoldt. Nor did it do so. In Soper, the issue was whether the trial court had abused its

discretion in refusing to sever two charged murders. In the course of its discussion, the

court highlighted the “significantly different” analysis applied to that issue and to the

issue of the admissibility of uncharged offenses. In the latter context, the state has the

burden of establishing that the “evidence has substantial probative value that clearly

outweighs its inherent prejudicial effect.” (Id. at p. 773.) In the joinder context, by

contrast, the burden is reversed. (Ibid.) Moreover, the burden is heavier on a defendant

seeking to prove an abuse of discretion in the joinder context than in the context of

challenging an evidentiary ruling to admit uncharged offenses. In the former, the

defendant must make a stronger showing of prejudice, namely, that the decision to join

the charges was “outside the bounds of reason.” (Id. at p. 774.) The balancing process

under Evidence Code section 352 does not even occur on a motion to sever charges. 15

None of the uncharged offenses could serve as a contributing factor to finding

identity or a common plan or design because none manifested “similarity in results” or

“such a concurrence of common features that the various acts are naturally to be

explained as caused by a general plan of which they are individual manifestations.”

(Ewoldt, supra, 7 Cal.4th at p. 402.) And, of course, the trial court rejected a theory of

admissibility based on common plan or design. (5/23/05 RT at 2, 49-51; 9/15/08 RT at

32), just as it ultimately concluded that the §1101(b) evidence could not pass the Ewoldt

test on the identity issue. Indeed, respondent concedes that the §1101(a) evidence was

not admitted to prove either identity or common plan. (RB, at 88: court excluded identity

It was only in the course of this discussion of the propriety of a trial court’s15

joinder decision — where the burden was on the defendant to establish the propriety of

severance and, on appeal, to establish the irrationality of joinder — that Soper questioned

the application of Hassoldt.

43

as ground for admission of the prior acts evidence; RB, at 85: prior act evidence not

introduced to show appellant’s common plan or scheme.)

To sum up, Spector contended in his opening brief that the trial court’s

interpretation of the motive theory of admissibility presented by the prosecution herein,

which essentially equated motive with a character flaw, obliterated California law’s

“limitations on identity and common plan or scheme evidence” because such an

expansive motive theory could be made to encompass virtually all extrinsic acts. (AOB at

100.) In response, respondent cites a case decided by this Court, Walker, which did the

opposite by harmonizing admissibility under a motive theory of relevance with those

limitations, precisely what respondent refuses, and more to the point, what the trial court

refused, to do. Walker supports Spector’s claim, not respondent’s answer.

Applying the analysis of Scheer and Walker, this Court should conclude that none

of the uncharged acts offenses was properly admitted under the prosecution’s motive

theory. Respondent asserts that the other acts “supplied the reason why appellant would

have killed Clarkson” (RB at 76 [emphasis in original]), but it at no point states what that

reason is. None of those acts provided a reason or incentive for Spector to kill Clarkson,

that is, none tended to establish a motive within any commonly understood definition of

that term. Indeed, the trial court itself expressly acknowledged this obvious fact. (4/10/07

RT at 14.)

3. The Record Evidence Does Not Establish the

Similarity Between Charged And Uncharged

Offenses

As noted above, there is yet another fatal flaw in respondent’s effort to justify the

motive theory. Respondent claims to find “defining similarities” in overlapping “factors”

between the uncharged acts and the charged crime (RB, at 76-77), which purportedly

justify the admission of the uncharged acts under a motive theory. With respect to the

charged crime, however, there was no evidence “that these factors occurred.” (RB at 77.)

44

Respondent asserts that the uncharged acts all exhibit Spector’s getting angry at, and

losing control with, a woman in whom he was sexually or romantically interested when

she attempted to leave his presence, at which point he blocked her egress and threatened

her with a gun. The proof at trial, however, contained no indication that Spector had

become angry at Clarkson or lost control with her or, indeed, threatened her with a gun. In

other words, respondent finds common features only through flawed, circular reasoning.

The California Supreme Court has condemned this sort of “vicious circle” in regard to the

admission of prior “bad act” evidence. (People v. Albertson (1944) 23 Cal.2d 550, 580-

581.) 16

As Spector has already pointed out (AOB at 90-91), respondent’s argument, which

carried the day below, is that, because he had brandished a firearm at women before, he

must have done the same with Clarkson, and, because he acted in that manner with

Clarkson, the charged offense resembled the uncharged offenses such that the latter are

admissible to prove the former. Respondent cites no case that has upheld the admission

of uncharged offenses based on such bootstrapping. In all of the cited cases, there was

independent proof of the circumstances of the charged offense that established its

commonality with the uncharged offenses. (People v. Gallego (1990) 52 Cal.3d 115,

171-172; People v. Davis (2009) 46 Cal.4th 539; RB at 75-76.) Indeed, it was precisely

Circumstantial proof of a crime charged cannot be16

intermingled with circumstantial proof of suspicious prior

occurrences in such manner that it reacts as a psychological

factor with the result that the proof of the crime charged is

used to bolster up the theory or foster suspicion in the mind

that the defendant must have committed the prior act, and the

conclusion that he must have committed the prior act is then

used in turn to strengthen the theory and induce the

conclusion that he must also have committed the crime

charged. This is but a vicious circle.

Id., at 580-581.

45

because the trial court found such proof lacking that it refused to admit the uncharged

offenses against Spector under the strict standards applicable to other offense evidence

proffered on an identity or common plan theory.

In sum, because the uncharged offenses did not provide an incentive for Spector to

kill Clarkson, because the purported presence of the same emotion in the charged and

uncharged offenses was not a contributing factor in finding a common plan or design,

because the “defining similarities” claimed by respondent (e.g., Spector’s anger, his loss

of control, his blocking Clarkson’s exit) were not established by independent evidence,

and because the identity of the shooter was very much in dispute, the trial court erred in

admitting the uncharged offense evidence on a motive theory. Three decisions of this

Court – Hassoldt, Scheer, and Walker – compel the finding of error.

E. The Trial Court Did Not Properly Instruct on the

Definition of Motive

Striking out on its own, and over defense objection, the trial court crafted an

instruction on the jury’s consideration of the uncharged offenses under a motive theory,

defining “motive” as “an emotion that may impel or incite a person to act in accordance

with his state of emotion.” That expansive definition, not employed in CALJIC or

CALCRIM instructions, eliminates the fine but crucial distinction between motive and

character in the other-offense context.

One treatise well describes rulings employing the rationale embodied in the trial

court’s unauthorized instruction:

Some cases attempt to avoid the policy of the rule [against

character-conformity evidence] by engaging in word-play on

the meaning of “character”; e.g., by claiming that the fact that

a husband is jealous is not a character trait but simply a

“particular emotional state.” One could often say the same

thing about greed, hatred, or lasciviousness and virtually do

away with the rule. Such reckless generalizations may be

tolerable in everyday affairs but courts are understandably

reluctant to encourage their use in the jury room.

46

(22 Wright & Graham, Federal Practice & Procedure: Evidence (1st ed. 1978 & 2010

supp.) (hereafter Wright & Graham) § 5239 [footnote omitted].)

Respondent begins its reply by citing Justice Jefferson, who, in People v. Gibson

(1976) 56 Cal.App.3d 119, 129, described motive in terms similar to those employed by

the trial court here. (RB, at 81.) Justice Jefferson did so, however, not as a suggestion

that the definition should be included in a jury instruction, but as part of a discussion of

why evidence should be admitted under a motive theory of relevance only with the

greatest of care:

In terms of prejudicial consequence, there is very little

difference, however, between other-crimes evidence that is

introduced to establish a defendant’s motive and thence to the

inference that the charged offense was committed by

defendant in accordance with such motive, and other-crimes

evidence as character trait evidence that leads to the same

inference – that a defendant acted in accordance with such

character trait and committed the charged offense.

Thus, Justice Jefferson’s point was that, precisely because motive can be

understood in the manner explicitly incorporated in the trial court’s instruction here, other

offense evidence should be admitted on the issue of motive only with extreme care.

Indeed, Gibson reversed the defendant’s murder conviction in part because of the lower

court’s abuse of discretion in admitting the other crimes evidence to prove motive while

failing to exercise the requisite degree of care.

It is the essence of sophistry and lack of realism to think that

an instruction or admonition to a jury to limit its consideration

of highly prejudicial evidence to its limited relevant purpose

can have any realistic effect. It is time that we face the

realism of jury trials and recognize that jurors are mere

mortals. Of what value are the declarations of legal principles

with respect to the admissibility of other-crimes evidence . . .

if we permit the violation of such principles in their practical

application? We live in a dream world if we believe that

jurors are capable of hearing such prejudicial evidence but not

47

applying it in an improper manner.

(Id. at pp. 128-130; see also United States v. Cunningham (7th Cir. 1996) 103 F.3d 553,

556-557 [“The greater the overlap between propensity and motive, the more careful the

district judge must be about admitting under the rubric of motive evidence that the jury is

likely to use instead as a basis for inferring the defendant’s propensity, his habitual

criminality, even if instructed not to.”].)

Where, as here, a jury is expressly authorized to consider uncharged offenses for

the purpose of determining whether the defendant had an inciting emotion that caused

him to act in accordance therewith and commit the charged offense, and the jury is

exposed to uncharged offenses that purportedly manifested that emotion over the course

of nearly 30 years, that emotion is no different than a character trait. Indeed, respondent

makes Spector’s case for him. (See RB at 90 [“The fact that the similar assaults had

recurred over a lengthy period added to their probative value.”].)

This Court would open a Pandora’s box were to it to approve Judge Fidler’s

instructional formulation, which has never been included in a California form instruction.

As the Alaska Supreme Court has said in an analogous context, “We decline to broaden

the intent exception to the established rule prohibiting evidence of prior misconduct to the

extent that it would destroy the rule.” (Harvey v. State (1979) 604 P.2d 586, 589.)

Likewise, this Court should not broaden the motive exception to destroy the rule of

Evidence Code §1101(a) by accepting the trial court’s departure from the CALCRIM

definition of motive.

F. The Trial Court Did Not Properly Exercise Its Discretion Under

Evidence Code Section 352

In addition to contending that all of the uncharged-offenses evidence was

inadmissible on any non-character-conformity basis, Spector also claims that, even if that

were not true, the trial court abused its discretion and violated his due process right to a

fair trial by refusing to exclude that evidence as unduly prejudicial. (AOB at 106-107.)

48

Respondent answers that the evidence had a strong probative value and, because the

uncharged offenses were less inflammatory than the charged offenses (that is, no one had

been shot in the course of the other offenses, let alone killed), the prejudice of their

admission was “diminished.” (RB at 90.)

As an initial matter, although left unmentioned by respondent, “[w]hen the

evidence is of an uncharged offense, [it is appropriate] to place on the People the burden

of establishing that the evidence has substantial probative value that clearly outweighs its

inherent prejudicial effect.” (People v. Soper, supra, 45 Cal.4th at p. 773 [emphases in

original; citation omitted].) Spector has already discussed at length, both in his opening

brief and above, why the probative value carried by the uncharged offense evidence was

solely a function of the extent to which it violated the rule against character conformity

evidence, that is, why the other offenses held no probative value other than through the

impermissible inference that, because the defendant had a particular character trait, he

was more likely to have killed Clarkson. Again, the asserted enhanced probative value of

the uncharged offenses because they “had recurred over a lengthy period” (RB at 90)

appears only because such recurrence better establishes Spector’s propensity to behave in

certain ways on account of his character.

A second factor that should have been, but was not, factored into the probative

value calculus was the temporal remoteness of the uncharged offenses. These purported

offenses occurred in 1975 (Robitaille), 1982 (Ogden), 1986 (Robitaille), 1989 (Ogden),

1993 (Melvin), 1993 (Grosvenor), and 1995 (Jennings). Clarkson died in 2003. In theory

at least, a defendant “must be tried for what he did, not for who he is.” (United States v.

Foskey (D.C. Cir. 1980) 636 F.2d 517, 523 [citation and internal quotation marks

omitted]; cf. Harrison’s Trial (Old Bailey 1692) 12 How. St. Tr. 834, 864 [excluding

propensity evidence in murder trial and remarking, “Hold, what are you doing now? Are

you going to arraign his whole life? Away, away, that ought not to be; that is nothing to

the matter”].) The vast majority of cases that have upheld the admission of such old

49

offenses as not unreasonably remote have done so on the ground that the defendant had

been incarcerated for a significant portion of the intervening years. (See, e.g., People v.

Davis, supra, 46 Cal.4th at p. 602 [“[A]lthough the prior acts occurred 17 years before the

crimes against Polly, they were not so remote as to warrant their exclusion, as defendant

had only remained free from incarceration for a total of three years during the intervening

period”], citing People v. Peete (1946) 28 Cal.2d 306, 308-309, 318-319 [24-year lapse17

since prior conviction was “not significant” when defendant had been incarcerated for 18

of those years]; People v. Wesson (2006) 138 Cal.App.4th 959, 970 [14-year-old offenses

not too remote since defendant served an 11-year sentence for them].) Although it may

well be true that each case must be determined on its own facts and no prior offense is so

ancient as to be inadmissible as a matter of law, regardless, one “that is twenty years old .

. . certainly meets any reasonable threshold test of remoteness” (People v. Burns (1987)

189 Cal.App.3d 734, 738.) A fortiori, 28-year-old (Robitaille) and 21-year-old (Ogden)

offenses indisputably meet that threshold for exclusion. The other offenses meet it as

well given the absence of any incarceration time in the time period between their

purported occurrences and the charged offense.

With respect to the absence of substantial, legitimate probative value, a third factor

exists. As the trial court had ruled, the uncharged offenses were inadmissible under a

theory of common plan or design because none involved preplanned acts. (9/15/08 RT at

32.) The words of one court discussing the admission of other crimes to prove intent are

equally apposite in the instant context; they highlight the absence here of probative value,

let alone substantial probative value, independent of the impermissible reliance on

character:

[T]he evidence of prior crimes involving intent of the moment

Respondent cites Davis with the parenthetical, “prior acts committed 17 years17

before charged crimes” (RB at 90), without noting the dispositive fact that the defendant

had been incarcerated for 14 of them.

50

are hardly ever probative of later acts involving similarly

split-second intent. Indeed, such prior crimes have less to do

with the type of specific intent that may arise later . . . than

they do with the defendant’s overall disposition or character;

and if there is one clear category that is not an exception to

the general rule against allowing evidence of prior acts, it is

that which includes “character, disposition, and reputation.”

(United States v. San Martin (5th Cir. 1974) 505 F.2d 918, 923 [citations omitted].)

Precisely the same is true with respect to motive when it is defined, as was done here, as

an emotion that propels action.

On the prejudice side, the notion advanced by respondent — that numerous

instances of Spector’s purportedly acting inexcusably and criminally in terrifying women

with a firearm is not unduly prejudicial because he did not kill those women — defies

common sense. If the rule were that the uncharged offenses have to be as inflammatory

as the charged crime to be sufficiently prejudicial to support reversal, there would never

be such error in a murder case if the other offenses did not involve a killing. That has

never been the rule, nor should it be. Moreover, that Spector had actually committed one

or more of the uncharged offenses was clear; whether he had shot and killed Clarkson

was anything but. Thus, though the charge of murder is more inflammatory than that of

brandishing a firearm, given the dearth of evidence that Spector had actually committed a

murder, the imbalance in the gravity of the comparative putative charges hardly

diminishes the prejudice he suffered.

The test for prejudice under section 352 is whether the evidence at issue induces

the jury to decide the case on an improper basis, commonly an emotional one, rather than

on the evidence presented. (See, e.g., Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009

[“[E]vidence should be excluded as unduly prejudicial when it is of such nature as to

inflame the emotions of the jury, motivating them to use the information, not to logically

evaluate the point upon which it is relevant, but to reward or punish one side because of

51

the jurors’ emotional reaction”]; People v. Zapien (1993) 4 Cal.4th 929, 958 [“prejudice”

is used in section 352 “in its etymological sense of ‘prejudging’ a person or cause on the

basis of extraneous factors”].) At least two factors commonly relied upon by courts to

find the requisite undue prejudice in the admission of uncharged offenses are present

here.

First, no punishment was ever imposed for the other offenses. (See, e.g., Ewoldt,

supra, 7 Cal.4th at p. 405 [observing that, if prior offenses did not result in conviction,

danger is increased that jury may wish to punish defendant for them]; Balcom, supra, 7

Cal.4th at p. 427 [similar].) Given the extremely unsympathetic manner in which

Spector’s character was portrayed in the seven discrete uncharged offenses, none of

which had carried any penal consequences for him, it is more than likely that at least one

juror was influenced to punish him now, if not for any one of them, then for their

cumulation. Indeed, the prosecution effectively urged as much. (See 47 RT 9233-9334

[“In Phil Spector’s world, you can commit such violence, such conscious disregard for

human life not once but seven times”].)

Second, the prosecution exacerbated the prejudice when it repeatedly used the

uncharged offenses to urge the jury to do precisely what the erroneous instruction

authorized, namely, find Spector guilty of murder because of the propensity he had

exhibited in the uncharged offenses and the likelihood that he had behaved in conformity

therewith in killing Clarkson. (See AOB at 83-85, 108-109, fn. 30.)

In light of all the above, it should be clear to this Court that the state never met its

burden of demonstrating both that the uncharged offense evidence had substantial (and

legitimate) probative value and that, if it did, said value was not substantially outweighed

by its inherent prejudicial effect.

//

//

52

G. The Trial Court Improperly Allowed the Prosecution to Argue That

Appellant’s Conduct Demonstrated a Pattern

When the trial court reversed itself and permitted the prosecution to argue that

Spector’s “pattern” of violent behavior helped prove that he killed Clarkson, it effectively

permitted an impermissible propensity argument, an error under state evidentiary law and

federal constitutional law. (AOB, at 107-109.) Respondent answers that the

prosecution’s argument, though it heavily employed references to Spector’s “pattern” of

behavior, was proper because “the pattern demonstrated all the permissible grounds for

admitting the other crimes evidence” and the argument did not expressly “urge the jury to

find appellant guilty based upon an inference of bad character.” (RB, at 91.) Respondent

also notes that courts often use the word “pattern” in their discussions regarding properly

admitted other offense evidence and that the prosecution’s arguments to the jury herein

were consistent with that precedent. (Id., at 92.) Furthermore, there could be no

prejudice, according to respondent, because of the trial court’s instruction directing the

jury not to use the uncharged offense evidence for any impermissible purpose. (Id., at

93.)

As the trial court at least at one point recognized, however, the prosecution’s

repeated use of the term “pattern” was akin to using the uncharged offense evidence as

propensity evidence, and, in the trial court’s words, “propensity is what you can’t use

1101(b) for” (7 RT 1183.) The trial court was hardly alone in that view. (See, e.g.,

Gilcrease v. State (Ark. 2009) 318 S.W.3d 70, 81-82 [upholding admission of other-

crimes evidence because not “offered to show a pattern of behavior”].)

The term “pattern” is most often employed in the uncharged offense cases under

section 1001 in connection with discussion of an identity theory. (See, e.g., Ewoldt,

supra, 7 Cal.4th at p. 403 [“For identity to be established, the uncharged misconduct and

the charged offense must share common features that are sufficiently distinctive so as to

support the inference that the same person committed both acts. The pattern and

53

characteristics of the crimes must be so unusual and distinctive as to be like a signature.”]

(emphasis added; citations and internal quotation marks omitted).) Respondent claims

that “the prosecution’s closing argument did not run afoul of the trial court’s ruling

excluding identity as a ground for admission of the prior acts evidence.” (RB, at 88.) But

the prosecution said it was going to use the uncharged offenses to argue identity (46 RT

9132), and then proceeded to do exactly that (see AOB, at 83-85 [summarizing

prosecution’s use of offenses in closing arguments]; id., at 108-109, fn. 30 [listing

excerpts.]) Its reliance on Spector’s “pattern” of behavior over 40 times was integral to

the misuse of the uncharged offense evidence in derogation of his right to a fair trial.

Respondent’s attempts to “put lipstick on the propensity pig” (Surprenant v. Rivas (1st

Cir. 2005) 424 F.3d 5, 23) are unconvincing.

The portion of the CALCRIM instruction that admonished the jurors not to

“conclude from this evidence that the defendant has a bad character or is disposed to

commit the crime,” even when coupled with the instruction admonishing them to follow

the instructions if they conflict with statements of counsel (RB at 93), does not mitigate

the damage suffered by Spector on account of the heavy “pattern” emphasis. As Justice

Jefferson wrote, it is “the essence of sophistry and lack of realism” to make such a claim.

(People v. Gibson, supra, 56 Cal.App.3d at p. 130.) The inadequacy of limiting

instructions in this context is well recognized. (See, e.g., People v. Antick (1975) 15

Cal.3d 79, 98, disapproved on other grounds in People v. McCoy (2001) 25 Cal.4th 1111,

1123 [“Despite limiting instructions, the jury is likely to consider this evidence for the

improper purpose of determining whether the accused is the type of person who would

engage in criminal activity”]; United States v. Thomas (7th Cir. 2003) 321 F.3d 627, 637

[“[D]espite the district court’s use of a limiting instruction, we are not convinced that the

two evidentiary admissions, with their attendant connotations of propensity . . . had no

effect on the jury when it weighed the other circumstantial evidence . . . presented by the

government”].)

54

H. There Was Prejudice

Respondent concludes with an argument that any errors relating to the admission

of and instruction on the uncharged-offenses evidence was harmless. (RB at 94.) This is

so, according to respondent, because of Spector’s “confession,” his post-shooting actions

that evinced his consciousness of guilt, and the forensic evidence. (Ibid.) The state

spends only a paragraph on its harmlessness contention because it is well aware it has

effectively conceded that admission of the §1101(b) material, if error, requires reversal. It

does so in other portions of its brief when it relies on the other offense evidence as a

“crucial” factor in obtaining appellant’s conviction. (See RB at 72 [acknowledging

obvious fact that the uncharged offenses were “crucial” to the jury’s determination of

Spector’s guilt]; RB, at 70: “Appellant’s prior assaults with a firearm on five other

women for sexual purposes also demonstrated that the shooting was a homicide rather

than a suicide, accident, or mistake.”) Furthermore, a salient difference between the first

trial and the second was the trial court’s expansion of the purposes for which the jury

could consider the other offense evidence, instructing that it could be considered to

determine whether Spector committed the charged crime.

Also ignored by respondent is the oft-recognized inherent prejudice carried by

uncharged-offenses evidence. (See, e.g., 1A Wigmore, Evidence in Trials at Common

Law (Tillers rev. 1983) § 58.2, at p. 1212 [“The natural and inevitable tendency of the

tribunal — whether judge or jury — is to give excessive weight to the vicious record of

crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to

take the proof of it as justifying a condemnation irrespective of guilt of the present

charge”].)

Spector concludes, then, where he began — he was denied a fair trial because his

was a trial by character. He should be afforded a trial in which the state presents its proof

of his guilt of the charged offense, untainted by the errors delineated ante and in his

opening brief, and a jury objectively and reliably determines whether it suffices to meet

55

the state’s burden.

III. ADMISSION OF THE TESTIMONY OF VINCENT TANNAZZO

CONCERNING APPELLANT’S PROFANE STATEMENTS ABOUT

WOMEN A DECADE BEFORE THE CHARGED OFFENSE WAS

REVERSIBLE ERROR

A. Introduction

As set forth in appellant’s opening brief (at 119-125), a trial court may admit

evidence of a defendant’s “generic” threat or intent to harm another where such evidence

is relevant to prove the charged offense (see, e.g., Evidence Code section 350); where “. .

. other evidence brings the actual victim within the scope of the threat. . .” (see, e.g.,

People v. Rodriguez (1986) 42 Cal.3d 730, 757); and where neither “. . . the

circumstances in which the threat was made, the lapse of time, [nor] other evidence ...

suggest[s] that the state of mind was transitory and no longer existed at the time of the

charged offense. . .” (see People v. Karis (1988) 46 Cal.3d 612, 637).

In its response to appellant’s challenge to admission of Tannazzo’s testimony, the

state does not, and cannot, dispute this statement of the governing rules. Neither does (or

can) the state dispute that:

• The Tannazzo evidence was admitted, over appellant’s repeated objections

on multiple grounds, solely on the theory that it qualified as evidence of

appellant’s “generic threats” within the meaning of Rodriguez and related

precedent (see AOB, at 112-114, 117);

• The criteria governing the admissibility of generic threats are sui generis

and therefore in many respects distinct from those that govern the

admissibility of defendant’s similar uncharged acts pursuant to Evidence

Code section 1101(b), People v. Ewoldt (1994) 7 Cal.4th 380, 404, and

related authority; and

• Despite their differing admissibility principles, evidence of “generic

threats” has “at least as great a potential for prejudice in suggesting a

56

propensity to commit crime as evidence of other crimes,” a fact that — as

respondent expressly concedes (RB, at 99) — imposes upon the trial court

the duty to “carefully examine” the alleged threats both to determine their

relevance to showing state of mind and intent and to assess “whether the

probative value of the evidence outweighs the prejudicial effect.” (Karis,

46 Cal.2d at 636.)

Application of all of these principles exposes the trial court’s admission of the

Tannazzo evidence as reversible error for not one but a host of elementary reasons, as

appellant’s opening brief explains (at 110-132). The state’s responses to each of

appellants’ supporting arguments fail for the reasons that follow.

B. The Tannazzo Testimony was Inadmissible Because Intent Was

Not in Dispute

The opening brief initially challenged the Tannazzo evidence on the ground that

the sole purpose for which it was admitted, i.e., to establish defendant’s intent at the time

of the charged offense, was not substantially contested at trial, since the charged act, if

proven, simply could not permit a finding of innocent intent. (AOB, at 119-122, citing

People v. Balcom, supra.)

On this point (unlike others discussed below), the admissibility issue is

unquestionably governed by the principles expressed in Ewoldt, such that, “‘[i]n proving

intent, the act is conceded or assumed; what is sought is the state of mind that

accompanied it.’” (Balcom, supra, 7 Cal.4th at 422 (quoting Ewoldt, 7 Cal.4th at 394).)

To be sure, as Balcom recognizes, a defendant’s plea of not guilty puts all elements of a

charged offense in dispute (id., 7 Cal.4th at 422-423), but there are instances, as in

Balcom, where the act, if done, does not permit a finding of non-criminal intent and

permits no “middle ground.” In cases such as Balcom and the present appeal, only the act

is in dispute and evidence concerning intent must be excluded, particularly in light of its

inherently prejudicial effect. (Id., at 422-423.)

57

The state meets this argument not by seriously disputing the Balcom principle but

by observing that the intent placed in issue here was that needed to support a finding of

implied malice, as opposed to express malice, a theory on which the prosecution did not

rely. (RB, at 97: “but implied malice, the theory that the prosecution did rely on, also

requires intent — the intentional commission of an act with conscious disregard for

human life.”) But upon analysis, it becomes clear that the Tannazo statements could not

have possibly been relevant to prove the mental state element of implied malice, and

instead were admitted for the impermissible purpose of establishing identity through

proof of bad character.

If the Tannazo statements had any probative value, and as explained below they

did not, it would be to prove an intent to kill, and respondent admits that the prosecution

never contended at Spector’s retrial that the defendant acted with express malice, i.e., that

he intended to kill Lana Clarkson. Spector never contended that if he shot Clarkson, that

act was not life threatening or he fired the fatal shot without implied malice — a

conscious disregard for the danger to life that act created — nor do the Tannazo

statements logically tend to prove that Spector intended to commit a life threatening act

without an intent to kill, but with a conscious disregard for life. Indeed, the state agrees

that the only real issue in the case was whether “appellant shoved the gun in Clarkson’s

mouth, or [whether] she did.” (RB, at 97.) Here, as in Balcom, only the act was contested,

rendering the other-event evidence of appellant’s intent categorically out of bounds.

//

//

//

//

58

C. The Tannazzo Testimony Was Not Admissible as a

“Generic Threat”

1. The First Statement

a. The Substance of the Statement

Inherent in the admissibility criteria discussed in Rodriguez and Karis is the

requirement that a proffered statement of intent to harm or “generic threat” actually meet

the definition of such a statement or threat in the first instance. (See AOB, at 122-125.)

As appellant has demonstrated, however, his initial statement, as reported by Tannazzo —

made a decade before the charged offense and to the effect that all women deserve a

bullet in their heads — fails to pass even this preliminary threshold.

Specifically, a comment, however pointed or angry, about what women do or not

“deserve” is a far cry from a plain statement of intent to harm that can authorize

admission under governing case law. Echoing the trial court’s rationale, the state

responds that there is no requirement that a generic threat be more definite than that

admitted here because the “context and wording unambiguously showed a deep-seated

belief about women” and because questions concerning the statement’s meaning

implicate issues of weight rather than admissibility. (RB, at 99.)

This claim is nonsense. Case law nowhere suggests that evidence of a “deep

seated” animosity towards a victim class — essentially, simple propensity evidence — is

enough to constitute admissible evidence of a generic threat in a homicide prosecution.

To the contrary, each of the cases cited by respondent (and appellant) approving the

admission of “generic threats” has involved a statement(s) that, on its face, involves the

defendant’s direct statement of an intent to harm rather than a remark about what “should

happen” to another, as occurred here. (See Rodriguez, supra, 42 Cal.3d at 756-758

(defendant “declare[d] that he would kill any officer who attempted to arrest him.” [cited

at RB 98]); Karis, supra, 46 Cal.3d at 634 (defendant stated that “he would not hesitate to

59

eliminate witnesses if he committed a crime.” [cited at RB 98-99]); People v. Lang (1989)

49 Cal.3d 991, 1013 (when asked why he carried gun, defendant pointed weapon at

witness and replied, “I’ll waste any mother fucker that screws with me.” [cited at RB

98]); People v. Cruz (2008) 44 Cal.4th 636, 651 (defendant threatened to kill sheriff’s

deputy other than deputy-victim by shooting him “in the back of the head” [cited at RB

98]).) Nor do any of the cited cases suggest that, notwithstanding the potential for18

undue prejudice arising from purported threat evidence, the question is merely one of

“weight” rather than admissibility.

Appellant also maintains that his first statement, if a “threat” at all, was so wide-

ranging and without limitation in its object that it does not create a meaningful “class” of

generic victims at all. (See AOB, at 127.) The state essentially responds that the

circumstances surrounding the statement nevertheless “matched” those attending the other

incidents admitted pursuant to section 1101(b) (see Argument II, supra) and the charged

incident itself, and were therefore “sufficiently narrow” to be “probative” of the latter.

(RB, at 100.) This argument is misguided because (1) it fails to address the criteria at

issue, i.e, the class of victims identified in the statement itself and (2) it erroneously

invokes a section 1101(b)/Ewoldt analysis that, even were it applicable, could never

locate the requisite similarity between the “generic threat” evidence and the evidence

relating to the charged offense (or, for that matter, the remaining incidents) that would

permit admission of the former.

//

The other two cases on which respondent relies do not implicate “generic threat”18

principles as set forth in Rodriguez and Karis at all. See RB, at 98 (citing People v.

Cartier (1960) 54 Cal.2d 300, 311 (approving admission in murder prosecution of

evidence of prior quarrels between defendant and actual victim) and People v. McCray

(1997) 58 Cal.App.4th 159, 172-173 (approving admission in criminal threat and stalking

prosecution of defendant’s prior threats to actual victim where victim’s state of mind was

directly at issue).)

60

b. The Passage of Time

Putting aside its failure to constitute a cognizable “threat” at all, appellant’s initial

statement simply cannot be deemed to reflect an abiding, i.e., non-transient, intent to kill

or harm in light of the substantial amount of time — again, Tannazzo’s shifting account

ultimately settled on roughly a decade — between the statement and the charged offense.

(See AOB, at 119-122.) Recognizing the difficulty presented by this critical condition,

respondent seeks to alter the governing criteria by arguing that lapse of time is merely a

“factor” in determining the duration of the alleged intent under Karis. (RB, at 100-101.)

But Karis does not call for application of a “balancing test” where one “factor,” (here,

time) is weighed against various others to determine an outcome. To the contrary, that

case holds that the remoteness of the threat alone “suggests” impermanence and, with that

suggestion, requires exclusion. (See id., 46 Cal.2d at 637 (evidence of qualifying generic

threat is admissible “unless the circumstances in which the threat was made, the lapse of

time, or other evidence suggests that the state of mind was transitory and no longer

existed at the time of the charged offense. . .”) [emphasis added].)

Furthermore, and of great significance, none of the cases cited by respondent or

located by appellant has approved the admission of “generic threat” evidence after

anything approaching the 10 year period between purported “threat” and offense

appearing here. (See RB, at 98-103.) Having failed to locate any such authority,

respondent seeks to change the subject by invoking decisions in which reviewing courts,

applying section 1101(b), have approved the admission of similar bad acts evidence that

was even more temporally remote. (See RB, at 101, citing People v. Davis (2009) 46

Cal.4th 539, 602 [admitting prior acts as evidence or common scheme or plan and intent

to commit sexual assault] and People v. Steele, 27 Cal.4th 1230, 1245 [admitting

evidence of prior homicide on issue of premeditation as to charged offense].) The

obvious flaw here is that, again, these cases did not involve generic threats at all, but

rather similar acts of misconduct that were proffered and admitted under the different

61

legal criteria required by section 1101(b), People v. Ewoldt (1994) 7 Cal.4th 380, and

related authority. As the trial court in this case recognized and the state cannot credibly

dispute, in no event could the purported threat described by Tannazzo meet such “similar

acts” criteria.19

Applying a related and equally flawed analysis, the state argues that the temporal

lapse appearing in this case may be disregarded because the disputed “threat” occurred

within a “continuous thread” of prior bad acts that the trial court (erroneously) admitted

pursuant to section 1101(b) and Ewoldt. (RB, at 101.) But nothing in the “generic

threats” doctrine permits an inference that an intent to harm others of a class remains in

effect based on a particular bad act(s) directed at a particular person for reasons that may

have had nothing to do with the “generic threat” at issue. Even were a court inclined to

entertain such an approach, it surely should not do so here, where the most recent “bad

act” — that involving Stephanie Jennings (see RB, at 101) — itself occurred many years

prior to the charged offense. Indeed, as appellant has also observed, appellant doubtless

encountered hundreds of women from the time of the first statement and the charged

offense without any incident, providing another basis to conclude that any “intent” he

Respondent argues that appellant has “mischaracterized” the holding in People19

v. Duncan (1945) 72 Cal.App.2d 247, in which the defendant, charged with murdering his

girlfriend, contended that she had committed suicide and unsuccessfully complained on

appeal of the trial court’s ruling excluding the testimony from the girlfriend’s ex-husband

that she had threatened to commit suicide eight years before her death. (RB, at 101, n.17)

Appellant described Duncan as holding that the girlfriend’s statements were so remote as

to be irrelevant on the issue of her state of mind at death. (AOB, at 104, citing Duncan,

72 Cal.App.2d at 253). Respondent points to Duncan’s observation that other evidence

precluded any possibility that suicide had caused her death and so suggests that Duncan

was not concerned with the passage of time but simply questions of “relevance.” (RB, at

101, n.17) The remoteness of the girlfriend’s statements, however, were key to Duncan’s

ruling. Thus, the Court began its discussion by stating, “The appellant complains that he

was not permitted to show by the testimony of deceased's former husband that deceased

was an habitual drinker and had threatened suicide. The testimony was excluded as too

remote. The ruling was sound.” (Duncan, 72 Cal.App.2d at 253 [emphasis added].)

62

purportedly expressed in the challenged statement was either non-existent at that time or

dissipated with his departure from the Christmas party. (See AOB, at 128-129.)

c. The Circumstances Surrounding the

Threat

Yet another fatal obstacle to admission of the first statement is raised by

consideration of the circumstances in which it was made. (Karis, 46 Cal.2d at 637.)

Here, the trial evidence discloses virtually nothing about the specific events that preceded

appellant’s argument with Dorothy Melvin or otherwise explained appellant’s first

challenged statement. In no event could the trial court reliably conclude that the

circumstances that attended or prompted the statement continued in a manner that

rendered non-transitory any intent the statement expressed.

d. Other Evidence

Appellant has also observed that Tannazzo’s testimony strongly indicates that if

appellant’s initial statement was a “threat” at all, the trial court should have deemed it an

idle one and excluded on this ground alone. (AOB, at 129.) Respondent counters that the

statement was relevant to show appellant’s “intent, motive, and state of mind in directing

the gun” at Clarkson and most of the other “assault victims” and that appellant’s conduct

at other times shows the “seriousness” of the disputed threat. (RB, at 101-102.)

Application of the “generic threats” doctrine, however, is not like creating a goulash that

improves with each new ingredient. The law did not authorize the trial court to consider

other events that could never qualify as “similar” for any purpose recognized by Ewoldt

when it assessed the meaning and admissibility of the purported “generic threat.”

Respondent’s further claim that the “threat” was at least relevant to demonstrate the intent

required to prove implied malice (RB, at 102) falters because if appellant’s statement did

not constitute a threat to shoot all women in the head — and it obviously did not — it

patently failed to qualify as an enduring intent to consciously endanger a woman’s life

some ten years later.

63

2. The Second Statement

The second statement reported by Tannazzo, purportedly made a year after the

first, was, by its terms, directed at specific woman whose name was unknown and for

reasons that were equally unknown. Accordingly, because the statement was not directed

at a class of victims of whom Ms. Clarkson was one, it clearly was not cognizable as a

“generic threat” under Rodriguez, as the trial court erroneously ruled. (See AOB, at 129-

130.) The state essentially concedes this point but urges that the second statement was

admissible to “show the seriousness in which (sic) he made the earlier, more general

statement.” (RB, at 103.) However, neither the “generic threats” doctrine nor any other

principle of state evidentiary law, including the 1101(b) tests articulated in Ewoldt, has

ever authorized the admission of evidence of a defendant’s character in the form of a

specific incident for such a purpose.

D. The Remainder of the Tannazzo Testimony Was

Inadmissible

Appellant also contends that the trial court erred in admitting those portions of the

Tannazzo testimony that far exceeded his account of appellant’s challenged statements.

(See AOB, at 130.) Respondent first responds that appellant forfeited this claim because

he did not secure a ruling on it from the trial court. (RB, at 103-104.) Appellant,

however, objected to precisely this evidence by means of a pre-trial motion in limine that

(1) addressed the specific legal theories for excluding the evidence; 2) was directed at a

specific body of evidence, i.e, that identified in the opening brief; and 3) was made at a

time when the court was able to determine the evidentiary question in its appropriate

context. (CT 5763-5778; CT 5816-5820.) Furthermore, in ruling that the disputed

statements would be admitted, the trial court effectively ruled that the remaining evidence

proffered by the prosecution would be admitted as well. Accordingly, appellant’s motion

in limine preserved this issue on appeal such that appellant was not required to renew it at

trial. (People v. Morris (1991) 53 Cal.3d 152, 189.) Indeed, given the trial court’s ruling

64

at the second trial and its admission at the first trial of both the Tannazzo statements as

well as the remaining evidence challenged here, any further objection would have been

futile. (People v. Arias (1996) 13 Cal.4th 92, 159.)20

As a substantive matter, respondent argues that the remaining Tannazzo testimony

was needed to provide “context” to the disputed statements themselves and to

demonstrate appellant’s “state of mind, motive, and intent.” (RB, at 104-105.) Apart

from the statements, however, virtually all of the remaining events described by Tannazzo

lacked probative value as to the sole purpose (intent) for which the statements were

admitted but were highly prejudicial to appellant. The trial court accordingly erred by

admitting this evidence at trial.

E. The Tannazzo Testimony Was Barred by Evidence Code

Section 352 and the Federal Due Process Clause

As previously noted, because “generic threat” evidence has “at least as great a

potential for prejudice in suggesting a propensity to commit crime as evidence of other

crimes,” a trial court must carefully weigh the probative value of such evidence against its

potential prejudicial effect under section 352. (Karis, 46 Cal.2d at 636.)

Respondent opposes appellant’s claim that the Tannazzo evidence should have

been excluded under this standard (AOB, at 131-132) with a conclusory argument about

its purportedly high probative value. (RB, at 105-106.) Appellant simply replies that if

the obligation described in Karis has any true meaning at all, it required the trial court to

bar the Tannazzo evidence in light of the facts that the challenged statements (1) cannot

reliably be deemed true “threats,” (2) against a meaningful class of victims, (3) nor can

any expressed intent be deemed to have continued given both the passage of time, and (4)

Respondent complains that appellant has not supplied record citations for this20

category of challenged evidence. (RB, at 104, n.19.) But the relevant citations plainly

appear in the factual summary provided in the opening portions of appellant’s argument.

(AOB, at 114-116.)

65

the uncertainty concerning the circumstances that prompted the statements. Added to

these factors undermining the persuasive force of the evidence is the obvious cumulative

effect of all the Tannazzo evidence when considered in conjunction with the extensive,

uncharged offense evidence admitted under section 1101(b). (See AOB, at 131.)

Finally, defendant’s federal constitutional challenge to admission of the Tannazzo

evidence “[does] not invoke facts or legal standards different from those the trial court

itself was asked to apply, but merely assert that the trial court's act or omission, insofar as

erroneous for the reasons actually presented to that court, had the additional legal

consequence of violating the Constitution.” For that reason, and contrary to respondent’s

claim (RB, at 106), the federal constitutional dimension of this claim may not be deemed

forfeited on appeal. (People v. Rogers (2006) 39 Cal.4th 826, 850, n.7.)

F. The Court’s Instructional Error Exponentially

Compounded the Prejudice of Its Error in Admitting the

Tannazzo Testimony

In the final portion of his argument, appellant contends that the trial court’s

instructions greatly magnified the prejudice arising from admission of the Tannazzo

evidence given that, as read, the instructions invited jurors to consider such evidence for a

variety of purposes governing the “other incident” evidence admitted under section

1101(b) and failed to explain the proper limits applicable to such testimony under

Rodriguez and related precedent. (AOB, at 132.)

For whatever reason, respondent ignores the plain import of appellant’s discussion

and characterizes appellant’s prejudice argument as advancing an independent,

substantive claim of instructional error. (RB, at 106, et seq.) Having done so, respondent

submits a lengthy opposition to its own straw man, contending that: (1) appellant

“forfeited” one component of his supposed claim by not seeking a limiting instruction,

and that (2) appellant “invited error” by requesting that the court not re-read an

instruction that omitted reference to the Tannazzo evidence but that the court instead

66

direct jurors to consult the written instructions that omitted the reference. (RB, at 106-

112.)

This argument misses the point. The state does not dispute that: (1) prior to

argument, the trial court had recognized its obligation to read an instruction that limited

the Tannazzo evidence in a way that “other offense” instruction did not, and (2) the court

erred when it failed to so limit the Tannazzo evidence. (45 RT 8735-8737; 48 RT 9672-

9674; 48 RT 9690-9691.) At that point, defense counsel confronted a Hobson’s choice

because a re-reading of an 1101(b) instruction that omitted the reference to the Tannazzo

evidence would only serve to emphasize the importance of the erroneously admitted

1101(b) evidence discussed elsewhere in the instruction. It was only in this context that

appellant’s trial counsel asked the court to instruct jurors to consult the written instruction

in lieu of a re-reading. 21

All of this is to say that, as appellant has maintained, it was the admission of the

Tannazzo testimony as evidence of “generic threats” that constituted the trial court’s

substantive error. The court’s additional failure to deliver a promised instruction

ultimately led jurors to hear an erroneous one, and then be told to consult a truncated one

that effectively permitted them to make whatever use of the Tannazzo evidence they

chose. That development, in conjunction with the content of the evidence and the

prosecution’s reliance upon it in opening statement and closing argument, established the

prejudicial effect of the asserted evidentiary error under any available standard of review.

(See, e.g., People v. Guiton (1993) 4 Cal.4th 1116, 1130 [reviewing court should examine

entire record, including arguments of counsel, to determine prejudice from instructional

error]; United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1318 [“Closing argument

matters; statements from the prosecutor matter a great deal.”].)

In no event can this Court conclude that defendant erroneously failed to seek a21

limiting instruction in the first instance since the trial court had expressly stated its

obligation and intent to give such an instruction.

67

IV. PROSECUTION MISCONDUCT DURING FINAL ARGUMENT

PREJUDICED APPELLANT’S RIGHT TO A FAIR TRIAL

A. The Misconduct Arguments are Not Forfeited

Appellant’s claims of misconduct in the prosecution’s closing argument are found

in the subheadings “C” and “D” of Argument IV in his opening brief, both of which relate

to the prosecution’s unfounded assertions that defense counsel paid expert witnesses to

give false testimony. (See AOB, pp. 139, 142.) Respondent’s contention that these

claims have been forfeited is meritless. To give context to the prosecutor’s attacks raised

here as error, appellant pointed to related statements castigating appellant’s defense as not

“liking” the truth, unlike prosecutors whose job it was to “give you [the jury] the truth”

(48 RT 9548-9549; 9550), or that the defense was an invention. (48 RT 9558.) These and

other comments, noted at RB 117-120, were the prelude to the statements at issue — that

appellant paid experts to invent testimony on behalf of the defense. (People v. Dennis

(1998) 17 Cal.4th 468, 522 [“we must view the statements in the context of the argument

as a whole”].)

As respondent states at RB 113, forfeiture “does not apply if a defendant's

objection or request for admonition would have been futile or would not have cured the

harm caused by the misconduct; nor does it apply when the trial court promptly overrules

an objection and the defendant has no opportunity to request an admonition.” (Citing

People v. McDermott (2002) 28 Cal.4th 946, 1001.)

Here, appellant objected to the arguments that “we paid for false testimony” for

“people to lie,” asserting that prosecutor Jackson is “accusing me — he is accusing me of

buying testimony. That is misconduct.” (48 RT 9606.) The court responded that the

prosecutor’s arguments were a “fair inference” from the record. (See AOB, at 138-139.)

This was completely unsupported by the record. The only suggestion made by the court

to the prosecutor was: “[t]hat is not the way I read it, but please clear that up.” (48 RT

9606.) This was followed by the prosecutor’s telling the jury the defense expert

68

witnesses were not credible because of the money they were paid. In no way did the

prosecutors retract (because they were not so ordered) the statements that the defense had

to “[j]ust go out and buy yourself a scientist.” (48 RT 9605); that this was a pay-to-say

defense in that “[y]ou pay it; I'll say it, no matter how ridiculous it is” (ibid.); or that the

defense strategy was all an illicit scheme (a “machination”) to hide from the jury the

truth: “The total cost to the defense to hide the truth from you folks, a staggering

$419,000. Cogitate on that number for just a second. A staggering $419,000 bucks to hide

the truth.” (48 RT 9606; italics added.)

Respondent’s argument that the prosecutor eliminated any improper suggestion by

his statement that the jury could consider the money experts were paid in order to assess

their credibility (quoted at RB 137-138), does not remove the stain of accusations the

defense purchased testimony to hide the truth from the jurors. There was no attempt by

the prosecutors to do so.

Furthermore, even if the defense objections were imperfectly made, then the

futility exception would apply. As the record reflects, the trial court did not agree there

was misconduct. Indeed, the court stated the arguments were a “fair inference” from the

evidence. Thus, even a perfectly made “timely objection and admonition would [not] have

cured the harm” because the court was not of a mind to give any such admonition.

Counsel need not ask for a curative instruction after an objection when the court finds no

error. (People v. Demetrulias (2006) 39 Cal.4th 1, 32 [once the objection is overruled,

counsel need not ask the jury to be admonished].) Thus, this court must reach the issue of

whether there was error resulting in a miscarriage of justice (People v. Marquez (1992) 1

Cal.4th 553, 575-576), or denied the due process of law guaranteed by the Fourteenth

Amendment.

No curative instruction regarding the prosecution accusations was given, leaving

undiminished the stain of the objectionable comments heard by the jury. Only at the end

of the case as part of the general instruction was it briefly stated that arguments are not

69

evidence. This comment was buried amidst all the instructions (48 RT 9658) and22

without any direction concerning the attacks on counsel for dishonesty.

To the extent respondent argues the defense was too late in making the misconduct

objections (see RB 114), the argument fails. Counsel objected on the same transcript

page as the accusations that the experts were paid “to hide the truth.” To be sure, the

prosecutor made similar arguments earlier (see AOB 137-138), but as was recently stated

in People v. Vance (2010) 188 Cal.App.4th 1182, 1198, counsel need not jump to object

to the first instance of misconduct for fear of forfeiture:

The Attorney General appears to believe that an objection

must be made at the very outset of assertedly improper

comments, and only at the very beginning, lest the power to

object be effectively lost. In other words, there can be no

effective objection once the improper remarks are underway.

It is understandable why the Attorney General does not cite a

single decision that endorses such a draconian rule. It makes

no allowance for defense counsel who may be a little slow to

appreciate the thrust of the argument. It makes no allowance

for counsel who might initially decide not to object in the

tactical hope that an improper remark is isolated, and

therefore should not be emphasized to the jury with an

objection. As shown above, once defense counsel decided to

object to the prosecutor's continued argument, he did

so—repeatedly and insistently—in a timely manner. We

therefore reject the argument that defendant's contention was

Compare People v. Cummings (1993) 4 Cal.4th 1233, 1302 (cited at RB 11622

and 119), where the Court observed: “If there is a reasonable likelihood that the jury

would understand the prosecutor's statements as an assertion that defense counsel sought

to deceive the jury, misconduct would be established. [Citation] It is possible that, taken

alone, the prosecutor's argument might have been so understood. However, any

implication in the argument that defense counsel engaged in deception was removed by

the trial court's admonition, after a defense objection was sustained, that the court was

certain that counsel were not trying to impugn the integrity of any parties to the

proceedings.” (Italics added.) Here, neither admonitions nor sustained objections

occurred.

70

not preserved for review.

The defense objection was correct and the court was wrong not to intercede.

(Vance, supra at 1201, “the possible prejudicial effect of the improper comments by the

prosecutor was exacerbated by the trial court's passive reaction to them.”)

Finally, this court always has discretion to review misconduct claims when the

objection below is less than perfect. In four of the cases relied upon by respondent, after

finding forfeiture, the reviewing court went on to decide the merits of the issue. (See

People v. Cunningham (2001) 25 Cal.4th 926, 1002; People v. Gionis (1995) 9 Cal.4th

1196, 1215; People v. Cummings (1993) 4 Cal.4th 1233, 1303 fn. 48 ]; People v. Marquez

(1992) 1 Cal.4th 553, 576.)

In People v. Crittenden (1994) 9 Cal.4th 83, 146, the court held that defense trial

counsel waived issues of prosecutorial misconduct in final argument for failure to timely

object. Then, the court reviewed the merits of the issue “in view of the potential claim

that counsel's failure to object on the specific grounds urged on appeal denied him his

rights under the state and federal Constitutions to the effective assistance of counsel

[IAC], we review these claims on the merits.” given the egregious nature of the

accusations, the objections that were made and the lack of judicial intervention, the issue

merits full review.23

For any or all of the above reasons, the misconduct issue is reviewable.

Because of the arguments defense counsel made in objecting to the prosecution’s23

accusations, there could be no possible strategy in not making proper objections. (See

People v. Asbury (1985) 173 Cal.App.3d 362, 365-366 ("The fact that counsel objected to

the felony-murder instructions at all, however, refutes any inference that he was pursuing

some tactical advantage by withholding the collateral estoppel argument.") As such, if

there was any deficiency in the objections raised below, the failure to object properly

would constitute ineffective assistance of counsel. (People v. Fosselman (1983) 33

Cal.3d 572, 581 [bar to review of People v. Green (1980) 27 Cal.3d 1, 34 may be avoided

if the failure to object to the misconduct in final argument deprived appellant of the

effective assistance of counsel].)

71

B. The Prosecution’s “Machinations of the Truth”Theme

Was the Context for the “Hide the Truth” Argument with

Respect to the Expert Witnesses

The prosecution’s attack on defense counsel for paying for false testimony was not

simply a criticism of “defense tactics and evidence,” as respondent argues. (RB 116.)

The rule is one of boundaries: evidence-based attacks on witness credibility are permitted,

but not baseless accusations that defense counsel is dishonest in procuring witnesses in

order to hide the truth from the jury. “Argument may not denigrate the integrity of

opposing counsel, but harsh and colorful attacks on the credibility of opposing witnesses

are permissible.” (People v. Arias (1996) 13 Cal.4th 92, 162; italics in original; accord

People v. Sandoval (1992) 4 Cal. 4th 155, 183-185.) From the prosecutor’s opening final

argument, the attack was initiated on defense counsel such that the latter had to address

the issue in his own argument: “The prosecution, apparently, thinks that you find me

untrustworthy. Apparently, that was the meaning of Ms. Do’s argument yesterday.” (48

RT 9344.)

Respondent argues the aspersions cast on defense counsel for his alleged

“machinations of the truth” and similar comments were proper. The term “machination”

is defined as “a scheming or crafty action or artful design intended to accomplish some

usually evil end.” In context, the word conveyed that appellant’s counsel was a schemer24

to achieve an evil end, i.e., the suppression of the truth. In fact, they explicitly argued he

hired the experts in order to hide the truth from the jury.

Prosecutors may zealously argue their cases and strike hard blows in the process,

but not foul ones. (Berger v. United States (1935) 295 U.S. 78, 88.) Respondent goes

through each of the statements at issue to explain that they in some way responded to

See Webster’s on line dictionary: http://www.merriam-webster.com/dictionary/24

machination?show=0&t=1288998846.

72

defense positions. (See RB 117 et seq.) But it is one thing to point to the evidence to

argue the defense position is unsupported or contradictory, and another to label the

process as counsel’s dishonest scheme to suppress the truth. It is this context that defines

the prosecution argument that counsel paid his experts to say whatever he wanted them to

say no matter how ridiculous in order to keep the truth from the jury.

For reasons of space limitations and because it is not particularly useful for this

court to review it, appellant will not rejoin respondent’s efforts to show why the alleged

“shifting sands” arguments were not supported. Suffice it to say that each argument was

met by evidence by defense counsel in his summation.

To give one example, respondent states the prosecution commented on the

changed defense theories of how and why Clarkson’s arms showed bruises. (RB, at 117.)

Yet, if there was a seismic shift on this issue, it came from the prosecution’s witnesses.

Dr. Peña could not identify the bruises as having anything to do with a struggle. (The

house showed no signs of struggle between appellant and Clarkson.) He testified it was

possible the bruises were caused when Clarkson's arms hit the chair after the shot or that

she had received them earlier at work. (21 RT 4124-4128.) Before the grand jury, he

testified he could not even give an opinion as to the cause of the bruises. (21 RT

4118-4119.) He also previously testified he could not tell whether the bruises occurred

simultaneously. (24 RT 4691.) But at appellant's trial years after his grand jury

testimony, he told the second jury he was sure they were from a struggle and not just

consistent with a struggle (21 RT 4118), explaining, "I have had time to think again over

the number of years that have passed and seen more." Then he retreated to saying the

bruises could be merely "consistent with struggle." (21 RT 4142.) Then he admitted

there were "other readily available causes for these bruises." (24 RT 4684-4685.) Indeed,

he agreed with studies that said the timing of bruises cannot be precise. (21 RT 4140.)

None of the State's criminalists who closely examined and photographed the body at the

scene noted any bruises on the arms.

73

More generally, respondent’s argument that the “prosecution thus properly retorted

that it was the defense that was avoiding the truth....” (RB, at 120) is not supported by the

record. The theme of the “machinations of the truth” came in the opening portion of the

prosecution’s final argument (see AOB, p. 137.) Obviously, the accusation of

“machinations” was not responsive to the defense closing argument. Further,

respondent’s position is not substantively supported because the theme of the defense

argument was based on science. The one isolated defense comment about the “truth”

cited in Respondent’s Brief concerned the lack of merit in the prosecution’s position that

the fatal shot was not self-inflicted. Appellant’s counsel argued from the evidence

showing that 99% of intra-oral shots are self-inflicted that to ignore this fact “is to

choose to ignore reality, to choose to ignore truth and go look for an excuse.” (48 RT

9353.)

That hardly justified the pervasive attack on him in both opening and rebuttal final

arguments. In any event, there is no “open door” rule to permit misconduct. (See People

v. Perry (1972) 7 Cal.3d 756, 790; see also People v. Pic'l (1981)114 Cal. App.3d 824,

871, overruled on other grounds, People v. Pic'l (1982) 31 Cal. 3d 731, [“Two wrongs

do not make a right. Thus, defense counsel's misconduct does not justify a tit-for-tat

answering misconduct by the prosecutor. We consider this to be the teaching of People v.

Perry (1972) 7 Cal.3d 756"].)

Respondent defends the prosecution’s argument regarding defense counsel going

“through the machinations of the truth to avoid it, to change it, to move it from here to

here. I mean, this is almost like an inside joke with us because we’ve seen this moved to

here.” (47 RT 9276.) Respondent’s defense of this “inside joke” between the two

prosecutors is that it was not an attempt to smuggle into the case an inference that the

prosecutors had an “inside joke;” i.e., personal beliefs about defense counsel’s

machinations and not an argument based on factual information known only to the

prosecutor. (RB 121.) The rejoinder fails. The comment and the others like it were not

74

mere “arguments that defense counsel called witnesses that gave implausible testimony.”

(RB 123.) They were attacks on counsel’s integrity that he put on phony evidence to25

“hide the truth” from the jury.

C. Arguing the Defense Was a “Pay to Say” Case in Which

the Defense Paid Experts to Give Preposterously False

Evidence to “Hide the Truth” Was Not Supported By the

Evidence and Was Misconduct

As appellant stated in his opening brief, he has no quarrel with the proposition that

the prosecution may vigorously argue that compensation to witnesses may color their

credibility. (See AOB, pp. 142-143, citing People v. Parson (2008) 44 Cal.4th 332,

362-363), People v. McGreen (1980) 107 Cal.App.3d 504, 514-519.) The core subject of

the present argument is the prosecution’s claim that appellant’s trial counsel fabricated his

defense by hiring expert witnesses to give false testimony.

It first should be noted that the alleged “evidentiary reasons” that the defense

experts’ testimony was unsound (and thus fair game for adverse comment) should be

compared to the prosecution experts’ alterations of position. Dr. Herold (see AOB, pp.

45-46) and Dr. Peña (see supra) made dramatic changes in their positions over the years,

yet the defense did not argue to the jury that the changes were prosecution “machinations

of the truth,” or examples of "[j]ust go[ing] out and buy yourself a scientist (48 RT

9605), or "[y]ou pay it; I'll say it, no matter how ridiculous it is" (ibid.), or an effort by

counsel “to hide the truth." (48 RT 9606.)

There is a qualitative difference between arguing about the impact of

compensation on witness credibility and accusing the defense attorney of paying money to

experts for “ridiculous” testimony “to hide the truth.” There is no requirement that the

Appellant’s brief reference to the court’s corrective actions in the first trial25

(AOB 141-142) was not argued as a basis of reversal. (See RB 122-123.) It was argued as

a contrast to the court’s lack of similar corrective action in this case.

75

words “suborned perjury” must be used to cross the line of misconduct. (See RB 124.) It

is clear enough from the language used that the charge was that counsel was dishonest

and paid enormous sums to buy experts to say anything helpful to the defense, no matter

how ridiculous, all in a campaign to hide the truth from the jury. This is to be contrasted

with what the prosecutor told the jury of the prosecution role: "My job, Ms. Do's job, is

to give you the truth." (RT 9549.) On the other hand, the defense role was characterized

as a series of “parlor tricks”: “Mr. Weinberg doesn’t like the truth.” He just moves it.”

(RT 9550.)

Respondent states such comments are proper when supported by evidence: “The

prosecution also may argue that defense counsel intentionally clouded the facts as long as

there is evidence to support that claim.” (RB 125.) There is not the slightest evidence

Mr. Weinberg did anything to buy experts for shaped, preposterous scientific testimony. 26

In fact, the most reputable, experienced experts were employed, each of whom had plenty

of scientific basis for their expert opinions. (People v. Bain (1971) 5 Cal.3d 839, 847

[“[t]here is no basis for the claim of fabrication by defense counsel, and the prosecutor's

comment to that effect must be deemed misconduct”].)27

Mr. Weinberg did not “go out and buy” these experts as most were hired before26

the first trial where they testified. This was long before Mr. Weinberg was on the case.

(See Dr. Di Maio [FT 6178 et seq.]; James Pex [FT 7727 et seq.]; Dr. James [FT 7936 et

seq.]; and Dr. Spitz [FT 8205 et seq].) The second trial was a reason for higher costs for

the experts.

See State v. Hughes (1998) 193 Ariz. 72, 84; 969 P.2d 1184, where the27

prosecutor went “out of bounds, and outside the record, to argue that psychiatrists create

excuses for criminals.” As in this case, the prosecutor in Hughes argued that defense

counsel paid a doctor for a result: “[the doctor] knows the result he's looking for, and

that's it. He knows the result he is looking for. Subject comes in with schizophrenic --

potential schizophrenic diagnosis. He knows right there what he is looking for, and $ 950

later, yes, that's what he's got..... . . He knows the result for he knows the result he wants.”

The court held: “It is improper for counsel to imply unethical conduct on the part of an

expert witness without having evidence to support the accusation.” (Id., at 86.) The case

76

D. There Was No Evidence the Experts Were Bought to Say

Anything the Defense Desired.

Respondent addresses each of the experts identified in appellant’s argument. (RB,

at 127-133) and then quotes or summarizes the prosecution accusations made in final

argument. (RB, at 136, et seq.) None of the analysis justifies the prosecution argument

that the defense overall approach to the science was to buy experts to testify to the

ridiculous in an effort to hide the truth from the jury. That is not a reasonable inference

from the evidence. It is misconduct. Nor was there evidence to support the claim that

payments alone were the true basis for their expert opinions.

Each expert’s testimony at trial was detailed and lengthy. Each expert

demonstrated the basis for his or her opinion. They were not just made up or “ridiculous”

opinions. While it is not productive to assess the content of respondent’s arguments

about the expert’s testimony, the record reflects that their opinions were reasoned,

supported by the experience and expertise of the expert, as reflected in voluminous pages

of the transcript. (See summaries of their testimony at AOB 14 as to Dr. Loftus; AOB 34

as to Dr. Seiden; AOB 38-40 as to Dr. James; AOB 40-41 as to Dr. Spitz; AOB 41-42 as

to James Pex, and AOB 43-44 as to Dr. Di Maio.)

The issue here is whether there was any basis to argue that the defense experts

gave ridiculous “pay to say” testimony. Respondent concedes as to Dr. Loftus that “there

was no testimony about the exact amount Loftus was receiving in this case.” (RB 127.)

In fact, there was no testimony at all about her compensation, yet respondent argues the

defense can be ridiculed for using her as part of the “pay to say” theme and that she could

be attacked “in part because she was a paid witness.” (RB 127.) Even if theoretically

permissible, the “pay to say” argument at a minimum would require evidence of some

was reversed for multiple instances of misconduct.

77

payment.

As to Dr. Seiden, the only testimony regarding compensation was that he was paid

$6,000 in addition to the time spent testifying (42RT 8239), hardly supportive of a “pay to

say” expert. As to Dr. Stuart James, his compensation bias evidently only applied when

he testified to findings supportive of the defense. (See RB, at 130-131.)

As to Jim Pex, his flub on the photos in his powerpoint presentation (using a photo

of a different handgun instead of the one at issue) certainly was argued by the prosecution

as mendacious. There was only one problem: no matter what make of handgun, the laws

of physics would apply to both: if appellant held the gun in his hand when it fired there

would be no blood or blood spatter on the front of the grip where the fingers would be.

That is all Pex’s photos sought to demonstrate. And there was blood spatter there. (36

RT 7012-16.) The prosecution did not refute the existence of spatter being in that

location. Pex’s findings of impact spatter stains on the gun grip were peer-reviewed by

Dr. Stuart James and another scientist. (37 RT 7054.) Dr. Di Maio also noted the lack of

a prosecution explanation for such spatter if its theory of homicide were correct. (40 RT

7714-7717.) (See RB 134, asserting that Pex’s testimony only basis for spatter on the

front of the grip.) Dr. Herold, the prosecution spatter expert, would only testify, “I28

wouldn’t say one way or the other on the stand [as to spatter being on the forward grip]. I

would want to go back to the original photography and examine it. It is not obvious

spatter to me.” (RT 5160.) This statement was made six years after Clarkson’s death and

after the first trial, where the defense of suicide was quite explicit. Dr. Herold never

returned to the stand to answer the question.

With regard to Dr. Spitz and Dr. Maio, these two experts are nationally, if not

world, renowned. Both literally “wrote the book” on their subject of expertise. They

Examination of the photos of the gun grip shows blood. Detective Lillienfield28

testified to the blood on the strap of the gun. (RT 3192-3193.) Dr. Herold testified to the

forward-facing part of gun grip and strap having blood all over it. (RT 5154.)

78

were well compensated for their extensive work and hours committed to the case over the

course of two trials. There was no basis to argue that Mr. Weinberg defense hired these

experts to hide the truth, or that the experts rendered opinions based on just money rather

than science and evidence.

In his opening brief, Spector argued that the baseless nature of the prosecution’s

“say for pay” attack on the defense experts was demonstrated by the fact that there was no

conflict in the evidence concerning five major points showing suicide (at AOB 146-147).

Some of respondent’s responses on these points reveal the weakness of the prosecution’s

position below. (RB, at 133-135.) Thus, in arguing against the fact that 99% of intra-oral

gunshots are suicides, respondent argues that Dr. Seiden did not find clinical depression29

or find expressed thoughts of suicide in Clarkson’s emails. (RB 134.) This is a supposed

rebuttal to the 99% figure. One wonders what the Clarkson email on December 8, 2002

meant when it stated: “I am truly at the end of this whole deal. I’m going to tidy up my

affairs and chuck it....” (Exhibit 572; see AOB p. 31-32.) Two witnesses, Hayes and

Sims, testified to her extreme despair and desire to die expressed (in Sims’ testimony) just

shortly before she died. (AOB 34.) With respect to Ms. Clarkson’s despairing emails

weeks before her death, respondent argues that these were selectively chosen (RB 135),

but does not refute their content or the temporal proximity to her death. Dr. Seiden

testified to the great number of risk factors for suicide present in Clarkson’s life at the

time of her death. (See AOB, p. 35.)

The issue of the blood on the gun grip (discussed supra) stands unrefuted. Herold

declined to say there was spatter on the forward facing gun grip, explaining that she

would have to look at the photos, but she never returned to testify.

As to the alleged refutation of the defense’s reliance on the absence GSR and

In questioning Dr. Di Maio’s 99% figure on the probability of suicide, the29

prosecutor prefaced a question stating, “Granted, nobody is going to argue that most

intraoral gunshot wounds are [not] self-inflicted.” (RT 7784.)

79

spatter on the jacket (RB, at 134), the prosecution chose not to test “[a]ppellant’s

clothing...for GSR because his clothing would be expected to contain GSR given the

number of his guns in this house.” [!] (RB,, at 134.) The problem with this excuse was

that the other guns in the house were in the upstairs room inside a box. (19 RT 3467.) If

there had been GSR on the jacket, this would have been evidence; yet, the investigation

elected not to test for it. (RT 19 3561.) Further, what respondent labels spatter on the left

sleeve was a transfer stain, according to Dr. James. (29 RT 5759-5760, disagreeing with

Dr. Herold.)

As to Dr. Di Maio, his opinion was straightforward that this was a suicide. (40 RT

7684 et seq.) The so-called concessions made on cross-examination were in response to

hypothetical questions which removed the factual basis for his opinions.30

Says respondent, “[t]he prosecution rigorously disputed every material aspect of

defense evidence.” (RB, at 135.) That may be so, but the dispute did not refute the

evidence nor explain the inexplicable decisions made in the investigation. Thus, while

Sheriff’s criminalist Steve Renteria swabbed bloody areas of gun that would be held by

the shooter and found no DNA attributable to appellant (RT 3181), he did not test other

areas of the gun because that would be “handler” DNA. (RT 3793.) That is, if31

appellant’s DNA were on the gun, it could be explained away by it being his gun, so why

bother? That might be true, but evidence of the complete absence of his DNA on the gun

See, e.g., RT 7827: “Q. If I asked you to assume the following to be true, assume30

that what's on that, the front strap, is actually smeared blood and flaked-off blood, all

right, based on earlier testimony, assume that to be true, if that is not spatter, okay, if that

is not spatter, there's nothing inconsistent with Phil Spector having held the gun? A. If

that is not splatter, it does not — It's — that removes one of the arguments, right.”(40 RT

7826-7827.)

A Lexis search of the phrase “handler DNA” reveals no cases discussing it,31

much less stating it is a reason not to test for DNA.

80

grip and trigger would be highly probative of his not firing the gun that night. That

question was the issue in the case.

Renteria admitted there were portions of gun that had no blood on them and that

would have been handled by the shooter, but that were not tested for DNA. (RT 3800,

3863.) Although it would have been possible to find DNA on the trigger, they did not test

for it there. (RT 3805.) DNA is a powerful instrument, perhaps the most powerful

forensic tool in existence. Other California prosecutions have not been so reticent about

testing gun grips and triggers for the DNA of the alleged shooter. (See, e.g., People v.

Becerra (2008) 165 Cal.App.4th 1064, 1067 [search of defendant’s apartment turned up

the gun used in a murder, and his DNA found on the trigger and grip revealed that “the

chance that a random person could not be excluded as a main contributor of the DNA was

1 in 700,000 for the DNA on the trigger and one in 10 billion for the DNA on the grip.”].)

Such inexplicable failures to DNA test the trigger and grip, as well as the

morphing of the State’s expert testimony (e.g., Dr. Peña, Dr. Herold, Ms. Lintemoot) all

in the direction of supporting a conviction, does not speak for a neutral scientific

investigation but rather for a desired result.

Finally, respondent cites People v. Sandoval (1992) 4 Cal.4th 15 for its approval of

the prosecution examination of a witness in the case and distinguishing that conduct from

the more egregious conduct in People v. McGreen (1980) 107 Cal.App.3d 504. (RB, at

138.) Sandoval found permissible the fact that “the prosecutor elicited testimony tending

to show bias by questioning the witness about his contrary testimony in previous cases

and his interest in helping the defense.” (Sandoval, supra, at 180.)

Appellant agrees that the case is instructive on this issue for several reasons. First,

the Court stated, “We have also held it improper for the prosecutor to imply that defense

counsel has fabricated evidence or otherwise to portray defense counsel as the villain in

the case.” (Id., at 183.) Second, the trial court in that case “sustain[ed] [the defense]

objection to the accusation of [counsel] perpetrating a fraud on the court. It admonished

81

the jury to disregard the comment, stating that there had been no perpetration of a fraud

by any lawyer in this case.” (Id., at 184.) Appellant here received no such protective

instruction. Third, while a prosecutor is entitled to argue inconsistencies in the evidence

and characterize inconsistent testimony as lies, the “prosecutor went beyond that point on

several occasions, denigrating counsel instead of the evidence. Personal attacks on

opposing counsel are improper and irrelevant to the issues.” (Ibid.)

E. There Was Prejudice.

Respondent relies upon the prosecutor’s purported clean-up statement following

the objections by appellant. As noted above, in no way was any accusation against

counsel removed from the case by the comments cited at RB 137-138. Nor were these

comments “isolated remarks.” (RB, at 140.) The theme of defense counsel’s

machinations of the truth and similar comments were ongoing and best exemplified by the

accusation that defense counsel went out to buy phony expert evidence to hide the truth

from the jury.

The court’s cursory final instruction stating that nothing the attorneys argue is

evidence was not curative. It neither spoke to the prosecution’s denigration of defense

counsel nor told the jury there was no evidence that Mr. Weinberg purchased testimony to

hide the truth from them. Respondent’s reliance on People v. Young (2005) 34 Cal.4th

1149, 1193, is meritless. (RB, at 140.) Young was convicted for having murdered three

men who were all shot from behind while begging for their lives or trying to run away.

The murders were either eye-witnessed or the defendant was seen with the victims as the

fatal shots were fired. All the bullets from each of the homicides came from the same

gun. The evidence was thus extremely compelling. Young found misconduct in the

prosecutor’s “brief remarks” characterizing defense counsel as lying to the jury. It was

held harmless because, in context, it was a comment “the jurors [would have] viewed ...

as mere reciprocal retort in an effort to rehabilitate the integrity of the maligned law

enforcement officer and [given] it little to no consideration.” (Id., at 1193.) Finally, the

82

court relied on the instruction that argument was not evidence. (Id.)

Given the repeated theme of defense counsel having a program to hide the truth

from the jurors through his machinations and “pay to say” conduct with the experts,

Young is a far cry from this case. The cursory final instruction “was no antidote for the

poison that had been injected into the minds of the jurors." (People v. Bentley (1955) 131

Cal.App.2d 687, 690, disapproved on another point in People v. White (1958) 50 Cal.2d

428, 431).)

Respondent’s claim that the evidence “overwhelmingly established that appellant

murdered Clarkson” (RB 140) has been fully rebutted in Arguments I and II, supra. As

was said long ago,

It is a well-known fact that intemperate and inflammatory

language coming from the lips of a high officer of the county

claims an attention from the ordinary juror which, if similarly

given voice by the defense, it does not receive. When it is

considered that what was said by the district attorney was

apparently with the sanction and approval of the judge of the

trial court, the prejudicial effect on the substantial rights of

the defendant becomes apparent.

(People v. Pantages (1931) 212 Cal. 237, 245.)

CONCLUSION

In this case, where the scientific evidence raised reasonable doubts as to

defendant’s guilt, other means were advanced to persuade the jury: the unprecedented

use of the trial judge as a witness for the prosecution on a central point in the case; the use

of inflammatory evidence of uncharged conduct, much of it decades old, which was

improperly argued as pure propensity evidence; and the castigation of appellant’s counsel

for purportedly having bought expert witnesses to make up “ridiculous testimony” in

order to hide the truth.

It is too much the habit of prosecuting officers to assume

83

beforehand that a defendant is guilty, and then expect to have

the established rules of evidence twisted, and all the features

of a fair trial distorted, in order to secure a conviction. If a

defendant cannot be fairly convicted, he should not be

convicted at all; and to hold otherwise would be to provide

ways and means for the conviction of the innocent.

(People v. Wells (1893) 100 Cal. 459, 465.)

Appellant was not fairly convicted. Reversal is required.

Dated: December 9, 2010 Respectfully submitted,

DENNIS P. RIORDAN

DONALD M. HORGAN

RIORDAN & HORGAN

CHARLES SEVILLA

By:

DENNIS P. RIORDAN

Attorneys for Appellant

PHILLIP SPECTOR

84

CERTIFICATE OF COMPLIANCE

I, Dennis P. Riordan, hereby certify that the attached brief is proportionately

spaced, has a typeface of 13 points, and contains 28,987 words.

Dated: December 9, 2010

_____________________ Dennis P. Riordan

PROOF OF SERVICE BY MAIL -- 1013(a), 2015.5 C.C.P.

I am a citizen of the United States; my business address is 523 Octavia Street, San

Francisco, California 94102. I am employed in the City and County of San Francisco,

where this mailing occurs; I am over the age of eighteen years and not a party to the

within cause. I served the within:

APPELLANT’S REPLY BRIEF

on the following person(s) on the date set forth below, by placing a true copy thereof

enclosed in a sealed envelope with postage thereon fully prepaid, in the United States

Post Office mail box at San Francisco, California, addressed as follows:

Lawrence Daniels

Deputy Attorney General300 South Spring Street, Suite 1702

Los Angeles, CA 90013

Clerk of the Superior Court

County of Los Angeles210 W. Temple Street

Los Angeles, CA 90012

Alan Jackson

Truc T. Do

Deputy District Attorneys210 W. Temple Street, Room 18-709

Los Angeles, CA 90012

Phillip Spector #G63408E-4-126L

California Substance Abuse

Treatment Facility

P.O. Box 5242

Corcoran, CA 93212

[x] BY MAIL: By depositing said envelope, with postage thereon fully prepaid, in the

United States mail in San Francisco, California, addressed to said party(ies); and

[ ] BY PERSONAL SERVICE: By causing said envelope to be personally served on

said party(ies), as follows: [ ] FEDEX [ ] HAND DELIVERY [ ] BY FAX

I certify or declare under penalty of perjury that the foregoing is true and correct.

Executed on December 9, 2010 in Francisco, California.

___________________________

Jocilene Yue