402 Hearing on concrete testimony

Guilt Phase

October 18, 2004

JUDGE: Now, I believe the next issue we're going to have a 402 hearing on the issue of the testimony with respect to the concrete, correct? Is that right?

DISTASO: Yes, your Honor.

JUDGE: Okay. Is there an offer of proof, Mr. Geragos, on the issue of the concrete?

GERAGOS: Yes. Mr. Jensen, who is the defense investigator, is going to testify that he went to the location of 523 Covena, and in the area that's been previously identified --

JUDGE: When did he go?

GERAGOS: In September. And took the --

JUDGE: This year?

GERAGOS: This year, that's correct. That he went to the area where the picture was taken on the 26th and/or the 27th of December of 2002, which is the area that has been loosely identified, because we have never had -- there is no placard in that area that shows exactly where Brocchini, or Skultety, or whoever it is that they claim took this sample, took it from. However, that area was also the subject of additional photos which were introduced that were taken on that September day when the prosecution expert testified as to the cement. Mr. Jensen went there, collected the cement, or portions of the cement that is there. My expert, Mr. Gebler, went there and also collected samples. Those samples were tested -- been given to the petrographer. They are going to testify -- Mr. Gebler is going to testify specifically that the -- what my client said he did specifically with putting the cement on that area is exactly consistent with the portions of the cement that we have in court here today that were picked up from that area. I assume their objection is that it was done in September, and all I can tell them is they waited until March of this year to actually do a report, which I did not receive until May of this year when we were in jury selection. So if they are telling me that I'm supposed to know or have ESP as to what it is that they are going to test two years down -- or eighteen months down the road, great. But what's good for the goose is good for the gander. They did tests with Jacobson on cell phone sites a year after the fact.

JUDGE: We're getting a little off the subject.

GERAGOS: Just in terms of this after-acquired evidence, if you assume it's the same location, it's the same area, it's a very small area. We're not talking about a large yard. We're talking about --

JUDGE: This is in the area in the driveway?

GERAGOS: Yes. Area by the driveway, which looks to me about two and half feet by about four feet area. And we have got a proffer to the Court, I have got an expert who is going to tell you that the cement is the same as the other cement samples. And it appears to be exactly as my client said, which is that it was poured over the aggregate and the gravel that is already preexisting there, and that remains there. And that the way that it dried looks like exactly what would have happened. It wasn't hydrated. That the rain had hit it, and that it had worn away. And we have got the samples of the concrete here. I will also tell you that for the first time after I supplied them with the report, for the first time they decided to take their petrographer out there over the week -- in fact, one of the reasons they asked for the one-week continuance is because they were so shook up over the report that my expert gave them that they went out, and they finally took the petrographer out there to actually look at the area. He had not been out there until this week during this continuance, or this hiatus. And he was out there with his hammer and with Investigator Smith investigating this same area. So I would assume that, you know, ready to go on rebuttal. That's fine with me. Let them have at it.

JUDGE: Okay. What's the prosecution's point of view?

D. HARRIS: Your Honor, just for correction, if the Court will recall, when Mr. O'Neill was testifying for the prosecution, that the defense produced some photographs which they attempt to have had admitted, and the Court ruled, there was no foundational showing that there had not been a substantial change to the location.

GERAGOS: Excuse me. That's not true. That's the Court's initial ruling. The Court relented after cross examination. Those were admitted. They were shown to him, and there was a sufficient basis. The first objection was sustained. After we came back, the Court admitted them.

D. HARRIS: Again, not exactly correct. What the Court allowed was there was a picture of fence posts. The Court's ruling at that point in time was the fence post had been there at that time, so the Court allowed that particular photograph to be shown to Mr. O'Neill and be used. And as we indicated to the Court, it was our information in talking to the next door neighbor, there has been a substantial amount of change that has taken place over there. That's what our objection is.

GERAGOS: They have got -- absolutely -- they said --

JUDGE: Let Mr. Harris --

GERAGOS: They made --

JUDGE: Would you wait until he's finished?

GERAGOS: There is no -- I can make.

JUDGE: I don't want you to interrupt the prosecutor. Excuse me. I'll hear what he's got to say. I'll hear what you got to say. Go ahead.

D. HARRIS: What we have is, we have a neighbor who has put in a new driveway, put in a sidewalk, added footings at -- the Reed house right next door shares that common fence. Put in footings to the house, a new sidewalk, which is described as being right up against the fence, in the private investigator's report. They also have put in a pool. One of the things that occurred is because there is an issue about the fenceline being -- whether it's on the Reeds' property or the Peterson property, the new neighbor had to go through the Peterson property, had to remove part of the fence, had to remove part of the gate and truck their concrete across the Peterson driveway into the Reeds' yard. We actually -- you know, we have been advised that there was concrete out there from the neighbors. So under these circumstances, there is no foundational showing that this has not been substantially changed from 2002.

GERAGOS: Well, they have got a problem. Number one, there is not a single report on it; number two, they know it's not the same area, if it is true. They want to call the witnesses who is going to testify to that house, subject to cross examination, as opposed to Mr. Harris misrepresenting or fabricating it, that's fine. That's for rebuttal. The fact of the matter is, it's the very same area that they said now got a witness proving to the Court -- is going to get up here and say the cement sample that he picked up was, at minimum, half a year old. That it was from the very same area where the cops took a picture of that. It also is consistent with exactly what my client said he did with the cement.

JUDGE: All right. I think it goes to the weight rather than its admissibility. The jury can put -- the witness can be subject to cross examination as to where the -- I do recall Brocchini was very general about where this particular sample of concrete was recovered in that driveway, or by the fence posts. And I think it goes to the weight rather than admissibility. He can testify to it. Prosecution, on rebuttal, if there has been a substantial change, if the concrete is different, then it's something that you can put on in rebuttal, put your expert on in rebuttal, and the jury can put whatever weight they want to put on the evidence. So the court will permit the testify of Mr. Jensen, Mr. Gebler. Like I said, goes to the weight rather than its admissibility.