December 10th, 2009
Mr. Presby states that the prosecution and defense have entered into several stipulations.
The first stipulation concerns Detective L. Mayer. If called to the stand he would testify regarding his preliminary investigation to this case, he wrote on his report the point of entry was the front door and the point of exit was the garage. Mr. Overland so stipulates.
The second stipulation concerns Jayne Goldberg. If called to the stand she would testify that during the time she lived with the victim Sherri Rasmussen at the Balboa condo, Sherri often left the front door to the condo unlocked. Mr. Overland so stipulates. (Correction edit for fact/clarity 9/2/11)
Ms. Torrealba states that this is for the preliminary hearing only.
The third stipulation concerns Santa Monica Police Department Records Manager Carl Olson were called to the stand he would testify that he searched the records of the Santa Monica Police Department Database and that there was only one burglary from a motor vehicle that occurred on March 9th, 1986 and that the person who reported that burglary was Stephanie Lazarus.
He would also testify that between Feb 1st 1986 and April 30th 1986 there were 54 thefts from motor vehicles in Beat 3, and that Beat 3 was the location where Lazarus reported the burglary from her car. Mr. Overland so stipulates.
Ms. Torrealba has some issues regarding the marking of evidence and certain items requesting to be rebooked back into evidence at LAPD. The exhibits are moved into evidence as reference only. There are no objections from Mr. Overland.
At this point, the people rest. Mr. Overland states there will not be an affirmative defense. There will be no defense witnesses.
Judge Perry stated he received the jury instructions related to the crime of murder as it was defined in CALJIC 2.10 in the 1983 revision and the definition of malice aforethought in CALJIC 8.11 and special circumstance, CALJIC 8.81.15, (lying in wait) also a 1983 revision. Perry also received the CALJIC instruction 8.81.17, which was revised in 1984, for special circumstance murder in commission of. Perry states he’s reviewed them and also did some research of his own.
Perry states, “This is the time for argument on whether the people have made their proof for purposes of a preliminary haring for the charges set out in the second amended felony complaint.” Perry then reminds all participants what a preliminary hearing is, that it is not a trial, it is an abbreviated hearing to determine if probably cause exists to require a defendant to stand trial.
Perry states he needs to hear argument from the prosecution on the issue of special circumstance allegations. He has concerns whether there is sufficient proof on both the special circumstance allegations.
Perry’s concern about the “lying in wait” charge has to do with case law that existed at the time, 1986. Shannon Presby argues for the people.
“With respect to the special circumstance of lying in wait as it was elucidated at the relevant time in 1986, I belive that the primary factors are essentially watching and waiting and a sudden attack. I think the evidence...”
Judge Perry interrupts Presby and says he’s not sure he agrees. He checks his notes and refers to Proposition 8, an initiative approved by the voters in March, 2000. It changed the language of the lying in wait special circumstance. It went from “while lying in wait” to “by means of.”
Judge Perry feels that the requirements of what the people need to show under the prior penal code, that the crime occurred “while lying in wait.” Judge Perry then talks about how various courts interpreted the “while lying in wait” and citing Domino vs. Superior Court, a 1982 decision. That ruling required:
“The killing must take place during the period of concealment and watchful waiting or the lethal act must begin at and flow continuously from the moment the concealment and watchful waiting ends. If a cognizable interruption separates the period of lying in wait from the circumstances calling for the ultimate penalty do not exist.”
Judge Perry then talks about the cases he’s read and how the old definition differs from the new ruling.
Presby states he agrees the distinction that was made by Proposition 8 was a “...greater temporal difference from the time that, so that the modern law permits a greater temporal difference from the time that the concealment ends until the tie of the attack...”
Presby still feels they can satisfy the more rigorous standard that existed in 1986 and cites to the court the evidence he feels supports the shorter time period.
Rasmussen was attacked in her home while her husband was absent. This suggests the defendant waited until the victim was alone. The defendant was off from work the day Rasmussen was killed and had three days off prior to the attack to stalk her victim and determine patterns of behavior.
Judge Perry interjects that the people have no evidence that Lazarus watched the condo for any amount of time. Presby agrees but contends that the location of the attack and the fact that John Ruetten was not indicates a natural inference the defendant was able to determine when Rasmussen would have been alone.
Presby goes onto argue that since the condo complex was secure there several things Lazarus must have done to gain admittance and that she had training on how to pick locks. Presby also presents statements from Lazarus’ journal about watching Ruetten’s car for 1/2 hour.
Presby also presents elements of the crime scene itself and that all evidence of a struggle take place in the entry way and the ultimate shooting in the living room area. The victim’s blood and torn fingernail are found right in front of the front door. All those facts indicate the victim was attacked immediately once the defendant gained entry to the home.
Presby mentions the bullets that shattered the sliding glass doors and the fact that five bullets were fired. The miss fires also support a sudden attack the moment the defendant is detected in the home. All this supports an attack from either the stairway or right near the front door. The garage and the front door are the only two access points to the condo and those doors are within five to six feet of each other.
Presby continues to argue that the only way the defendant could have gained access at that time was to have watched and waited for when John Ruetten was absent. And the fact that the attack occurred almost immediately upon the defendants entry into the home, which would qualify with respect to a sudden attack.
Ms. Torrealba reminds Presby about how Rasmussen was dressed in her nightclothes indicating she was not expecting company or anyone in the home and is also evidence of a sudden attack.
Presby continues with the argument that if one was expecting company and some conversation they would have been fully dressed instead of in just a robe, t-shirt and panties.
Judge Perry then asks who is going to argue the killing during the commission of a burglary and Presby states that he will also make that argument. Perry states he feels the prosecution has a problem arguing the defendant came there specifically to murder the victim then the prosecution does not have special circumstance of killing during a burglary.
Presby agrees with that, but states that’s not what they are alleging. The prosecution is alleging that Lazarus entered with the intent to kidnap. Judge Perry states you are not alleging that as special circumstance.
Presby responds, “We are not alleging that the felony is during the course of a kidnapping, but that the garget of the burglary was to kidnap. So that when she entered the house, her intent was not to steal or to assault, but to kidnap. So it is during the courts of the burglary, but the target of the burglary is not an assaultive crime or a theft crime; it is a kidnapping.”
This argument rests on the same evidence as well as the rope that was found in the front area of the condo. Presby argues all the evidence regarding the rope near the front door with the victim’s blood on it and the victim having a pattern ligature on her wrist.
Presby also argues that the lack of the defendant’s prints at the scene is another factor he feels supports the kidnapping theory and goes to the special circumstance of lying in wait. Presby mentions the contact with items in the home... the stacked stereo equipment and the broken vase. Presby argues that the lack of prints and the DNA (strong evidence of identity) from the probable bit wound a reasonable conclusion is that Lazarus was gloved. Presby goes onto argue that going to a rivals home wearing gloves, and bringing a gun and a rope is evidence of intent.
Judge Perry asks Presby, “What about if you just wanted to tire her up?”
Presby argues why that would not be a reasonable inference because the defendant was a police officer just going into someone’s home and tying them up is a crime, at least battery, false imprisonment and if there’s movement, kidnapping. Those charges are not the type of thing a young officer would want on their record. If the victim was left alive, what happened would certainly have been reported to police.
Judge Perry counters about the other evidence found at the scene of disruption. The stereo equipment on the floor, the phone pulled off, the drawer pulled out. Presby states the prosecution believes all those elements were staged to lead the investigators to conclude this was a burglary.
Presby and Judge Perry continue to argue back and forth the elements of the evidence presented.
Judge Perry states the prosecutions theory again. “Your theory is there was an attempt to bind that resulted in some kind of physical altercation, a gun comes out. When does the gun get covered by the...”
Presby replies that is significant and it “...goes to the willful, deliberate premeditation.” Presby mentions the victim was struck several times in the head. She was disfigured. Presby and Judge Perry agree that at least one shot was a “killing shot” right in the heart. Presby states that they know that the blanket covers the firearm for all three shots into the victim but not the one’s through the sliding glass doors.
Presby argues this means the defendant had the opportunity to take the gun and wrap the gun. Judge Perry replies, “So your theory, as I have it, you’re saying that the evidence is consistent with entering, attempt to bind, struggle, gun comes out, two bullets fired, beating with the vase an then execution?” Presby states, “Yes your honor, that’s correct.”
In response, Overland argues only with respect to the special circumstance charge. He first addresses a bloody fingerprint (I believe on the stereo equipment) which he states a lift was taken. Overland states he doesn’t believe there is any evidence of “lying in wait” whatsoever. He feels that, “...the argument made by the prosecutor seems to be self-contradictory in the sense that he equates a sudden attack with lying in in wait. And the two are contradictory, it’s either a sudden attack or there’s lying in wait, waiting.
Judge Perry states that the cases cited back in 1986 indicate that just taking someone unaware was not sufficient to establish the special circumstance of lying in wait. Overland responds that the prosecution’s theory is the first he’s ever heard “...this novel theory of kidnapping.” Overland mentions the prosecution’s original theory, the theft of the vehicle because it was given to Rasmussen, but now they’ve dropped that and gone with kidnapping. Overland states there is no evidence as to the prosecution’s theory of the sequence of events. “There’s no evidence as to what happened, when.” Even though Mr. Ruetten had never seen the rope before, that’s not evidence that Lazarus brought it with her to bind the victim.
Judge Perry states that it is “curious” why the rope and abraded wire is on the floor, and there is the possibility that the rope might have been in contact with the victim’s wrist, “...but I don’t know that that gets you as far as they want it to go. I would agree with you.”
Overland goes onto say that it is a theory, but it falls short of probable cause. Judge Perry asks for rebuttal from the prosecution.
Presby argues that the rope was not from the home, it had the victim’s blood on it, the victim had a pattern abrasion and the rope was knotted; it had two knots in it as if it was tied in preparation for binding.
Judge Perry rules. “The court dies find the people have produced ample evidence in support of the allegation and that the defendant is responsible for and did commit a willful, deliberate and premeditated murder as charged in count 1. I find that there is sufficient evidence for purposes of the preliminary hearing. That would also follow that there’s sufficient evidence that the defendant personally used a firearm in the commission of that offense.
I do find the evidence insufficient for both of the special circumstance allegations. I just think that it’s too speculative. I appreciate very much the argument, Mr. Presby. I think you’ve done as much as you can with the evidence.”
Judge Perry complements Mr. Presby on being an excellent attorney, but as he looks at the evidence he finds it insufficient to support that the murder occurred during a burglary or under the other special circumstance of “lying in wait” as it was defined in 1986. Judge Perry asks Overland if he wants to present a motion to suppress Lazarus’ statement, but Overland states he doesn’t know if he wants to bring a motion or handle it during trial. Judge Perry tells him he better do it before trial. Judge Perry confirms that the people do want to litigate the matter of the defendant’s statement.
The parties then discuss returning for arraignment in ten days. A hearing is set for December 18th for bail and the arraignment.
And that ended the four days of preliminary hearing.
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