Opposition to Motion for Sanctions and Motion to Exclude Witness Diane Jackson and Request for Discovery

FILED

SAN MATEO COUNTY

May 26 2004

Clerk of the Superior Court

By /signature/

Deputy Clerk

 

JAMES C. BRAZELTON

District Attorney

Stanislaus County Courthouse
Modesto, California

Telephone: (209) 525-5550
Attorney for Plaintiff

 

SAN MATEO COUNTY SUPERIOR COURT
STATE OF CALIFORNIA

 

THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff,
vs.
SCOTT LEE PETERSON,
Defendant.

 

No. 5056S60
OPPOSITION TO MOTION FOR SANCTIONS AND MOTION TO EXCLUDE WITNESS DIANE JACKSON AND REQUEST FOR DISCOVERY
Time: 9:30
Dept: 2M
Date: May 27, 2004

 

The People oppose defendant's motion for sanctions and to allow hypnotized witness Diane Jackson's testimony. The People separately move in-limine to prevent any defense evidence of alleged third party culpability without a sufficient showing pursuant to People v. Hall, infra. The People also request defense discovery pursuant to Penal Code Sec. 1054.3.

 


 

POINTS AND AUTHORITIES
 

I
THE DEFENDANT'S CLAIM OF PROSECUTORIAL MISCONDUCT IS FALSE


Like the proverbial boy who cried wolf, the defendant is once again falsely accusing the prosecution of misconduct. This defense teams's modus operandi seems to be that when they have neither the law nor the facts to support them, they resort to allegations of prosecutorial misconduct.


The court will remember the multiple false statements of prosecutorial misconduct alleged by these attorneys in regards to the wiretap litigation. Every single claim was either abandoned by the defense or found not true by this court (RT pages 1975, 1978- 1979).


The defense also falsely claimed prosecutorial misconduct during the presentation of the dog tracking motion (RT page 1537). The court found that claim untrue (RT page 1538).


Clearly, this action is a tactical decision by the defense to denigrate the prosecution with false statements. Such a tactic is in violation of Rule 5-200 (A) of the CA Rules of Prof. Conduct, and CA Bus. and Prof. Code Sec. 6068(d).
 

II
TROMBETTA DOES NOT APPLY; HOWEVER, EVEN IF IT DOES, THE WITNESS
MUST STILL BE EXCUSED
 

The defense makes an argument pursuant to California v. Trombetta (1984) 467 U.S. 479, and Arizona v. Youngblood (1988) 488 U.S. 51, that the situation here regarding hypnotized witnesses is somehow akin to the prosecution destroying exculpatory physical evidence. There is nothing in either cited case that supports that

2


contention; even if there were, the Trombetta standard does not provide the defendant any relief.
Trombetta's standards are clear. There are three criteria that must be met before any relief can be given.


(A) The evidence must possess exculpatory value that is apparent before the evidence is destroyed;
(B) The defendant must show bad faith on the part of the prosecution;
(C) The evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.


(A) DIANE JACKSON'S TESTIMONY IS NOT EXCULPATORY; IT WOULD NOT BE ADMISSIBLE EVEN IF SHE HADN'T BEEN HYPNOTIZED


Ms. Jackson says that at 11:40 a.m. on December 24, 2002, she saw three dark-skinned males, but not African-American, standing near a van parked on the street in front of 516 Covena Ave. She stated that she initially thought they were landscapers but changed her mind because they looked up and watched her as she drove by. She said that she changed her mind because landscapers normally continue working and don't watch traffic going by. She stated that she initially told the officers the van was white, but that upon thinking about it she believed the van was darker, either a tan, or brown color. That's it. That is all she said. Ms. Jackson had no information regarding seeing Laci Peterson that morning or even that these three people were doing anything improper.


Karen Servas testified at the preliminary hearing that she found Laci Peterson's dog, standing alone in the street in front of her house, with his leash still attached, at 10:18 a.m. on December
3

 

 

24th. Thus, it would have been impossible for these individuals to have abducted Laci because any alleged abduction would have already happened over an hour and a half before.


The law regarding the admissibility of third party culpability is clear; there must be some nexus or connection to the crime. "Evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." People v. Hall (1986) 226 Cal.Rptr. 112, 117, People v. Adams (2004) 115 Cal.App. 4th 243.
Here, there is no evidence linking these alleged persons to Laci Peterson's disappearance. Neither Diane Jackson, nor any other person connects these three people, or their van,. to anything related to this case. No one says they saw Laci in this particular van, or with these people. As such, any testimony from Diane Jackson would be inadmissible and improper.


(A)(1) THE PEOPLE MOVE TO PREVENT ANY EVIDENCE OF THIRD PARTY CULPABILITY WITHOUT A SUFFICIENT SHOWING PURSUANT TO PEOPLE V. HALL


The People hereby move in-limine to prevent the defense from introducing any evidence of third party culpability without a sufficient showing pursuant to People v. Hall, supra. The People object to any mention of: a cult of satanists, individuals painting pictures at the Albany bulb, any mystery woman, including Amanda H., any brown van, or of any other third party culpability, without the defense first putting forth evidence sufficient to meet the People v. Hall standard.

4


 

(B) THE PROSECUTION DID NOT ENGAGE IN BAD FAITH


The defense states that the prosecution "just last week turned over reports disclosing an interview with a witness who saw Laci Peterson being pulled into a van by at least two men." The defense does so in order to mislead the court, and anyone else who reads their motion, to suggest that this is completely new information that wasn't previously provided to them.


The defense neglects to tell the court that the alleged sighting took place on December 28, 2002 (four days after Laci Peterson disappeared) and that the witness had previously spoken to Modesto Police Detective Denis Holmes on that same date. Further, the witness's description of the woman's clothing did not match the clothing Laci Peterson was wearing when she was ultimately found. Finally, the witness's name, address, telephone number and a description of his statement were previously provided to the defense on May 14, 2003 in the initial discovery (Bates No. 14791, see attached discovery log signed by Bill Pavelic).


It is true that Modesto Detective Craig Grogan did recently re-interview the man and obtained a more detailed statement from him. Once Det. Grogan's report regarding that interview was completed it was discovered to the defense. As the court knows, such action is completely proper and is part of routine trial preparation. The People would be remiss in their duties if they did not fully prepare to rebut all potential defense evidence.

 


(B)(1)MODESTO DETECTIVES ACTED PROPERLY REGARDING THE HYPNOSIS

The defense also claims that the prosecution knowingly permitted Ms. Kristin Dempewolf and Ms. Diane Jackson to be

5


 

hypnotized on January 17, 2003 by an unqualified hypnotist solely to prevent Ms. Jackson from testifying. That claim is patently absurd. On January 17, 2003 (less than one month into the investigation, and months before Laci and Conner's bodies were found), the prosecution was not even aware that either witness was going to be hypnotized by Dr. Pennington, or that Dr. Pennington was not a licensed psychologist in California.


The only reason that either witness underwent hypnosis on January 17th, was an attempt by the Modesto Police to have each witness more fully recall what she might have seen on December 24, 2002. Nothing more. There was no improper motive by any law enforcement personnel regarding these two witnesses. Further, Ms. Jackson's statement to defense investigator Gary Ermoian proves this fact. She told him on January 16, 2003, that "Tomorrow (1-172003) she is scheduled for hypnosis at the Modesto Police Department, in an attempt for her to remember more about what she saw.


Modesto Police Detective Stough' s police report regarding this incident also proves this fact. In it he writes,

"Dr. Pennington was contacted by Det. Sebron Banks to assist us in attempting to obtain further information from witnesses regarding a suspicious van. The witnesses to be contacted are Kristen Dempewolf listed in Det. Schmierer's supplemental dated 1/9/03 under this case number. The second individual to be interviewed was Diane Jackson listed as a witness in Det. Stough's supplemental dated 12/27/02."

Finally, to show how ridiculous the defense allegation really is, if the Modesto Police Department only wanted to prevent Ms. Jackson from testifying why did they also have Ms. Dempewolf undergo hypnosis? Ms. Dempewolf is a witness who has information

6


 

favorable to the prosecution's case. Her information was also known to the Modesto Police Department on January 17, 2003. Obviously, if the Modesto Police Department had solely wanted to keep Ms. Jackson from testifying, she would have been the only witness who would have undergone hypnosis.


(C)THE EVIDENCE SHOULD NOT BE ADMITTED SO TROMBETTA'S THIRD REQUIREMENT DOES NOT APPLY


Trombetta's third requirement is that the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Here, it is immaterial that Diane Jackson was the only person to have seen these three males standing near the van. Since the evidence is not exculpatory and therefore inadmissible, the fact that no one else saw these people, or this van is not relevant.


III
DR. PENNINGTON WAS NOT A QUALIFIED HYPNOTIST


The court has previously ruled that Dr. Pennington was not a qualified hypnotist pursuant to Evid. Code Sec. 795 and therefore excluded the testimony of witness Kristen Dempewolf. The same standards must apply to the proposed defense witness Diane Jackson as she also underwent hypnosis in the same fashion as Ms. Dempewolf.


Evidence Code 795 sets forth the conditions under which testimony of a witness who has previously undergone hypnosis may be admissible in a criminal proceeding.


One of the conditions required to permit testimony of a witness who was previously hypnotized is addressed in Evidence Code 795(a)(2), which states that the testimony is admissible if

7


"(t)he substance of the prehypnotic memory was preserved in written, audiotape, or videotape form prior to the hypnosis."

Here, the defendant attempts to introduce a statement from Ms. Jackson preserved in a one-page and two-line report taken by defense private investigator Gary Ermoian on January 16, 2003. In light of the court's previous ruling regarding Ms. Dempewolf's statement, such a recording is clearly not adequate.


Dr. Pennington was not a licensed psychologist pursuant to Evid. Code Sec. 795. 

The required procedure in Evidence Code 795(a) (3) (D) is that (t)he hypnosis was performed by a licensed medical doctor, psychologist, licensed clinical social worker, or a licensed marriage and family therapist experienced in the use of hypnosis, and independent of and not in the presence of law enforcement, the prosecution, or the defense.

While Dr. Pennington has a doctorate in psychology, he is not a licensed psychologist. As such, he does not fall under the definition of psychologist as stated in Bus. & Prof. Code Sec. 2903. The court has previously found Dr. Pennington to not be a qualified psychologist under Evid. Code Sec. 795 and therefore excluded the testimony of witness Kristen Dempewolf. As the conditions were exactly the same for witness Diane Jackson, the court must also exclude her testimony.
 

IV
PEOPLE'S REQUEST FOR DISCOVERY
 

The People have previously requested defense discovery multiple times both informally and through court pleadings. In fact, each and every time the People have provided discovery in this case, a written request for reciprocal discovery was included. Further, the People have formally requested discovery through a

8


 

motion filed on December 11, 2003 in Stanislaus County Superior Court (See attached). To date, the People have received a defense witness list consisting of 18 names, 35 pages of reports of defense witness interviews, one audiotape of an interview of Diane Campos, and a videotape showing interviews of [blacked out], [blacked out] and [blacked out], and [blacked out].


The People have provided over 40,000 pages of written material, hundreds of photographs, dozens of audiotapes, and numerous videotapes. The People have provided the results of all scientific tests that have been completed, including the bench notes of the scientists who personally performed the testing. The People have had evidence tested at the CA Department of Justice at the defense request, and have made numerous other efforts to accommodate defense requests for discovery.
In contrast, the People have not received any discovery from any named defense expert including
[blacked out], [blacked out] or [blacked out]. The People's investigators have separately
made requests directly to these experts in an attempt to obtain discovery. Despite being assured by [blacked out] that "anything they asked for" would be provided, no discovery has been forthcoming.
 

The People are aware that [blacked out] and [blacked out] both have conducted examinations of evidence in this case, and both participated in defense autopsies of Laci and Conner's remains. The People are aware that numerous photographs and videotapes were taken by the defense during these autopsies, and at other times and locations.


The People are specifically requesting copies of all photographs, and all videotapes taken during those autopsies, or

9


while visiting the residence at 523 Covena, or at any other time during their investigation, including any personal photographs taken by [blacked out] or [blacked out].


The People continue to request all discovery as required by Penal Code Sec. 1054.3, and previously requested on December 11, 2003; including any evidence, or witnesses, the defendant intends to offer during the penalty phase in this trial.


CONCLUSION


Based on the above facts and law, the People respectfully request that the defense motion be denied and that the People's request for relief be granted.


Dated this 26th day of May, 2004, at Modesto, California.
 

Respectfully submitted,
JAMES C. BRAZELTON

District Attorney
By /signature/
RICK DISTASO
Deputy District Attorney

10


See PDF for next 2 pages:  Discovery Request and Record; Felony Discovery Log


FILED

03 DEC 11  AM 8:59

CLERK OF THE SUPERIOR COURT

COUNTY OF STANISLAUS

BY /signature/

Deputy

 

JAMES C. BRAZELTON

District Attorney
Stanislaus County Courthouse
Modesto, California

Telephone: 525-5550

Attorney for Plaintiff

 

STANISLAUS COUNTY SUPERIOR COURT

STATE OF CALIFORNIA

 

D.A. No.1056770
THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff,
vs.
SCOTT LEE PETERSON,

Defendant

 

No.1056770
PEOPLE'S INFORMAL REQUEST FOR DISCOVERY
Hrg: 12-12-03

Time 8:30 am

Dept: 2

 

The People informally request reciprocal discovery pursuant to Penal Code Section 1054.3.


Specifically, the People request; any real evidence that the defendant intends to offer at trial, the names and addresses of persons, other than the defendant, he intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, including any reports or statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer


 

in evidence at the trial. Calif. Penal Code Sec. 1054.3.

 

Dated: December 8, 2003
Respectfully submitted,
JAMES C. BRAZELTON

District Attorney
/signature/

RICK DISTASO

Deputy District Attorney


 

AFFIDAVIT OF SERVICE BY FACSIMILE
STATE OF CALIFORNIA
COUNTY OF STANISLAUS


I, the undersigned, say:


That I am a citizen of the United States, over 18 years of age, a resident of Stanislaus County, and not a party to the within action.
 

That affiant's business address is Stanislaus County Courthouse, Modesto, California.
 

That affiant served a copy of the attached PEOPLE'S INFORMAL REQUEST FOR DISCOVERY by facsimile to The Law Office of Mark Geragos, fax number 213-625-1600.
 

I declare under penalty of perjury that the foregoing is true and correct.
 

Executed this 10th day of December, 2003, at Modesto, California.

 

/signature/


People v. Scott Lee Peterson

D.A. No. 1056770
Court No. 1056770


 

AFFIDAVIT OF SERVICE BY FACSIMILE
STATE OF CALIFORNIA
COUNTY OF STANISLAUS


I, the undersigned, say:


That I am a citizen of the United States, over 18 years of age, a resident of Stanislaus County, and not a party to the within action.
 

That affiant's business address is Stanislaus County Courthouse, Modesto, California.
 

That affiant served a copy of the attached PEOPLE'S INFORMAL REQUEST FOR DISCOVERY by facsimile to The Law Office of Kirk McAllister, fax number 209-575-0240.
 

I declare under penalty of perjury that the foregoing is true and correct.
 

Executed this 10th day of December, 2003, at Modesto, California.

 

/signature/


People v. Scott Lee Peterson
D.A. No. 1056770
Court No. 1056770

 


 

PROOF OF SERVICE BY FAX

 

Case No. SC55500
My name is Deborah Padilla. My main business address is:

 

X Office of the District Attorney
400 County Center, 3'd Floor

Redwood City, CA 94063


oOffice of the District Attorney

1050 Mission Road
South San Francisco, CA 94080

 

oOffice of the District Attorney

400 County Center, 4th Floor

Redwood City, CA 94063


oOffice of the District Attorney

21 Tower Road
San Mateo, CA 94402

 

I am over the age of eighteen (18) years and not a party to the cause. On May 26, 2004, I served the attached:


OPPOSITION TO MOTION FOR SANCTIONS AND MOTION TO EXCLUDE WITNESS DIANE JACKSON AND REQUEST FOR DISCOVERY


on the hereinafter named, by placing a true copy thereof in a fax machine and ordering it delivered to fax machine telephone number (213) 625-1600, the fax number for the Law Offices of Geragos and Geragos.


Executed at Redwood City, California.


I declare under penalty of perjury that the foregoing is true and correct.

 

 

/signature/

Deborah Padilla