Tuesday, February 28, 2012
2-10-2012 Judge Robert J. Perry, © Thomas Broersma
AT 8:50 AM, Judge Perry takes the bench. To me, it looks like Overland got his hair trimmed. I believe he used to have more of a wave in the back. His daughter Courtney is wearing her brownish-camel colored pantsuit again. For some reason, I really like this outfit on her. I like how the jacket comes just below her waist.
The people have a couple of issues before they get to the jury. Lazarus has come out with her large brown file-jackets stuffed with papers. DDA Presby states they have a couple of 402 issues with witnesses. Overland wants to call some of the police officers who executed the search warrants of Lazarus’ home, office, locker. He wants to get on the record, the number of items taken during the search. Presby is objecting because he does not see the relevance. (snip)
I believe it’s Overland who counters, that it’s not just the sheer number of items. It’s items that went back to the 1980’s. It has to do with the bullets that they recovered from her locker and her home. There were no bullets that matched the type of bullets (recovered by the coroner).
JP: Were bullets taken from the home.
JP: From her locker?
Judge Perry then gives what he thinks is the defense’s position, to counter the prosecution. “The defense position (is) they really went through this place and really didn’t get anything. I don’t know. I haven’t seen the (retur? entire seizure list?) (snip) ...strikes me we’re getting into a 352 area, why things were not taken and speculating about that.”
SP: Many of the things were returned on the courts order some seven months later.
MO: I think the issue is hundreds of bullets from (the home; locker) and nothing (matched the 42A & 42B bullets recovered).
Overland thinks there are two parts. How thorough and what was recovered.
JP: I don’t think the thoroughness has (any relevance) but the number of bullets has relevance. (snip) I am allowing (relevant? number of) bullets seized.
SP: We will prepare a stipulation on bullets recovered from the house and locker.
MO: The additional search of her old locker at Internal Affairs, subject to (receiving?) of her gun and bullets.
SP: The characterization as a “search” is incorrect. Two years before, at another department of LAPD, was clearing out space, old lockers with new locks, old gun and uniforms belonging to the defendant are found. It’s not related to a search.
JP: Can you date that?
SP: It was before she became a suspect.
MO: That’s incorrect. A (?) contacted Robbery/Homicide and tried to open the locker.
SP: He called the Robbery/Homicide group that he had cleaned out locker two years earlier.
JP: So what is the relevance from the old locker?
SP: There wasn’t a search so there wasn’t an inventory.
Presby asks about the cross of character witnesses to impeach with other material. (snip) “I believe it’s broad (the Calif law that allows this). (snip) It is a report from victim’s (father) weeks and months before her death by the father.”
The defendant came into her town home before the murder. The victim reporter to the father that she was at home and John was absent. She came upon the defendant inside the town home. That the defendant was in uniform and a confrontation occurred inside the town home and the victim told the defendant to get out. This was before the marriage, after John Ruetten had moved in, late fall, 1985.
The victim made a more detailed account when the defendant came to the work place in 1985. The interview with Detective Nuttall, the report of the victim that she reported to her father, previously in (the prosecution’s) case in chief.
Certain applications to test a witness.
JP: The father conveying to Nuttall...
Father told original detectives in 1986 and was ignored repeatedly.
SP: When investigators reopened (the case) he said, “I tried to tell you about this.”
His statement is corroborated by the defendants own statements (that she confronted the victim at work) maybe 1, maybe 2 maybe three times.
SP: We believe it was many times at the hospital and at the house.
Judge Perry asks a question as to whether or not the victim notified her husband about these encounters.
SP: Yes, and Mr. Rasmussen (said?), ....and said she did not. (snip) She intentionally did not tell John, did not want to acerbate (the situation?) any further. (She) wanted to handle it on her own. (The) calls to her father were extemporaneously. (snip) She called her father the night the victim found the defendant in her home.
Judge Perry goes over the law.
JP: I have no doubt of the good faith (of the prosecution? of their information? witness?). I’m just not comfortable with it. (snip) This has been around (the law?) for a long time.
Judge Perry goes onto character witnesses,. Goes over what may (be used to?) test (a witness’ credibility) (snip) My understanding, unlike the federal law (these questions can be asked in California) to ask, have you made an opinion based on facts of the case?
Is the testimony about contact at place of work. We don’t have specific details to the specific nature of that (confrontation?).
Judge Perry mentions something
JP: I’m just not going to allow you (prosecution) to do it. I think I’m going to exercise discretion; 352. (snip) Character evidence is framed by opinion....
Presby makes one last effort to be able to cross the defense character witness with the questions he wants to ask.
SP: Not only able to ask if you knew questions... (miss the rest of the argument).
JP: But (?) again, don’t spend all day on it. (snip) I’m not going to allow any questions of the facts of the case.
SP: Defense investigator asked several questions of the witness, “Do you believe the defendant committed this crime.”
JP: I’m not going to allow it.
Overland interjects and asks Judge Perry if the prosecution will be able to ask questions of the witness regarding if you knew questions verses the facts of the case.
Judge Perry, almost on the verge of sounding irritated responds, “That’s what we’ve been talking about.”
Judge Perry cites California case law. It allows the prosecution to ask, ‘Have you heard? Do you know.’
JP: That’s the danger of calling character witnesses. Federal court calls that to be reversible error.
Then I believe Judge Perry cites the California case that allows those types of questions in California.
JP: I’ve cautioned the prosecution not to ask.
Judge Perry then gives an example but I’m not quick enough to write it down.
MO: My response to that. I don’t believe it stands (the California law) to that. Federal law stands on due process law (13th? 14th? Amendment) and what (Lee?) says. If questions are asked of character witnesses of the facts of the case, it will violate the defendants right to due process.
JP: I’m glad we’re having this discussion. The prosecution is well aware of the risk. but indeed, Federal rule is you may not ask the questions. I’ve researched this to the best of my abilities and California law allows it. I’m not going to preclude the prosecution from asking the question.
SP: The judge can instruct the jury that it’s to test the opinion and not the truth of the case...
JP: I’m going to allow some, subject to 352.
Presby states there is one other matter and Nunez gets up to state the issue.
PN: There is a witness on the defense, referred to as a “lab director”, some description related to LAPD lab.... (discovery?) SID laboratory.... was there two analysts not involved in the case removed from testing in 2003 or 2004 and another removed from testing in 2007. (We) don’t see the relevance to those two non-involved witnesses.
JP: Mr. Overland, what’s the relevance?
MO: He’s being called to testify about inspection reports and how they are conducted by another source and numerous violations in the lab....(snip).... and there after accredited... 1998 (accreditation) test resulted in inadequate safeguards in the lab.
JP: Do you want to hear this outside (the presence) of the jury?
JP: Are you ready to announce?
SP: We’ll read a stipulation and then we will rest.
A gentleman enters the well that has a particular look about him and someone in the gallery whispers a joke I overhear, “What’s F. Lee Bailey doing here?”
DDA Nunez stands in the well with his arms crossed over his chest.
At 9:30 AM the jury is called in and we finally go on the record.
Judge Perry tells the jury they are still technically in the prosecutions case-in-chief.
DDA Presby gets up and reads a stipulation to the jury. First, he marks documents into evidence. The documents are not identified specifically other than they are multi-page documents.
SP: I’d like to read a stipulation.
Judge Perry interjects and then explains to the jury again what a stipulation is.
SP: The People of the State of California (and the defense) agree the following items (that) were collected are authentic copies of items listed.
And then Presby runs through a whole list of photographs of items, some of them items seized from the defendant’s home, such as the computers and hard drive towers. Other items of evidence agreed upon are reports generated from those computer items.
There is a further stipulation that a custodian of records (and I miss the individual’s name because Presby says it so fast) regarding the last pieces of prosecution evidence entered into the record and defense quadruple D, were made in the regular course of business and are true and accurate copies.
The prosecution and defense also agree that an SID criminalist in 1986, (Doraine? Muzac?) on February 28th, went to 7100 Balboa Blvd and collected from a cloth a red stain from stairwell, 18: south of the garage wall, going to the (garage), evidence item #13.
They further stipulate photos seized from the home Evidence #163, 164, (and then he lists of a bunch more evidence numbers, about sixteen or more), and Defense EEE1, EEE2, EEE3 were taken from one of those photo albums.
SP: Move into evidence subject to acceptance and the people rest.
We are now waiting for an interpreter so that a witness can testify. The interpreter arrives, Victoria Carro.
#1 EVANGELINA FLORES (Evangalina?)
Overland first asks her if they have ever met before.
She was a housekeeper for 7100 Balboa Blvd, Unit 206, owner Michael Rosenberg.
MO: Do you specifically remember the day of February 24th, 1986?
EF: I remember it was a Monday. I would usually go to that house on Monday.
MO: Do you mean apartment?
EF: Yes, apartment. (snip) I would usually get there between 8 and 9 AM.
MO: IS that next to Apartment 205?
EF: Yes. He was the corner unit, the last one in that area.
As you walk out of unit #206, #305 was to the right.
MO: On about 12:30 PM in the afternoon, did you hear something?
EF: I was going from the sitting room to the dining room. (snip) When what I saw what was going to wall, to my left. (snip) When I hear a sound coming to wall from my left.
MO: Where were you (when you heard the sound?)?
EF: I was on the lower floor going upstairs to the dining room. (snip) My understanding is, all the units were the same.
I believe she explains further.
MO: So you were walking up the stairs to the living room and dining room?
MO: What kind of noise did you hear.
EF: First heard sounds as if a fight was going on. Then heard a very loud violent sound. Then a second one.
MO: Did you hear anyone scream?
EF: At this time, I don’t remember but maybe I could then?
MO: Do you remember being interviewed by the (detectives back in 1986?)? (snip) Was the interview by police that evening?
MO: Do you remember telling them you heard a sound like a door slamming?
EF: Yes. Because you could hear loud sounds like this.
MO: Do you remember telling officer that you heard a scream?
EF: I now remember that after that striking sound, (I) remember hearing that something fell, (a) sound like that.
MO: Could you tell whether the sound you heard was from a male or female?
MO: What did you do after you heard the first sound?
EF: After hearing that, everything was silent. Then I heard a car drive off. (snip) I looked out the kitchen window but I couldn’t see (anything). (snip) Yes. A car drove off.
MO: No. My question was when you spoke to officers in 1986, you were asked whether you heard a car and you said you did not.
EF: It’s possible. I was very nervous back then.
MO: Are you nervous now?
MO: (Well, don’t be.) Do you think you remember better back then than better today?
EF: Yes. Of course.
MO: Did you ever go downstairs after you heard the noise?
EF: No. I kept doing my job.
MO: But after the sounds you heard, there was total silence?
MO: Did you look out the bedroom window?
EF: Yes. But you can’t really see anything there.
MO: Did you ever go out to take the trash out?
MO: Do you remember telling the detectives in 1986 you went to take the trash out?
EF: Yes, but not outside, to the garage below.
MO: Did you ever go to the front door of Unit #205?
EF: Yes, when I was ready to leave. (snip) About 2:00 to 2:30 PM in the afternoon.
MO: Did you see if the door to #205 was open or closed?
EF: No. Everything was silent as usual.
She was interviewed by police on May 14th, 2009. At that time she told detectives she heard the noises around 11:20 AM. She said that she was estimating the time. She didn’t look at the clock. She told the officers back in 1986 that she heard the noises at 12:30 PM.
EF: When I first went to the police station, so it was more recent. So I remember when it happened.
She went to the police station that same evening.
MO: And at that time you told officers you heard noises at 12:30?
EF: As I said, before that night, my memory was very fresh.
Overland now wants her to read her statement. Presby objects, asked and answered. Judge Perry takes over.
JP: You were interviewed that night this thing happened?
JP: You told them (snip) the best of your memory then?
MO: Actually you did tell them it was 12:30?
I believe she answers yes again.
Direct ends and cross begins.
DDA Presby crosses the witness.
SP: You were interviewed three times? (snip) Once in 1986, once in 2009 and once...
There is a long convoluted answer, something about her daughter, a teacher being with her and her daughter listening to the questions... and I believe either Presby or the Judge interrupts and asks her a different question.
SP: In the first time you told it was 12:30 in the afternoon you heard sounds? (snip) Second time (you told detectives?) you said it was about 11:30? (snip) Third time (you) said it was (?)? (snip) So, when you heard those sounds, did you look at a clock?
SP So when you heard those sounds, you were giving your best estimate?
Presby goes over the sequence of events and the sounds she may have heard again.
SP. When all this happened, your employer Mr. Rosenberg wasn’t home?
SP: And after you heard these sounds, you went back to work?
Cross ends and redirect begins.
MO: Did you have a certain routine tat took a certain amount of time, say, clean (certain areas at a certain time)?
EF: First, I check the living room. I was not stationary in one area. I would have to go to the laundry room.
I miss the last question and there’s no recross.
DDA Nunez is sitting sideways, watching Overland’s direct. His elbow is on the arm of his chair and his closed fist over his mouth. He’s moving the muscles of his face in some way.
#2 SUZANNE WINSTON MENDOZA
Ms. Mendoza is dressed very nice. She’s wearing a black outfit (or top; I miss seeing her take the stand) with a pearl necklace. She has short, sleek black hair to the middle of her neck.
MO: Do you know Stephanie Lazarus?
SM: She’s my cousin and my friend. I’ve known her virtually all my life. (snip) The last time I actually saw her was August 2nd, 2008. It was my 50th birthday party. She was attending that day.
Overland wants to put up a photo from the birthday party. There is some kind of objection from the prosecution. While counsel are at sidebar, I see defense investigator, Mr. Later, whispering with Lazarus at the defense table.
The photo of the party is put up on the overhead screen.
MO: Besides Ms. Lazarus, do you know anyone else in the photo?
SM: Carol, her mother to the left. I believe that’s Steven and Scott.
MO: Who is Scott?
SM: Scott is Stephanie’s husband. (snip) This is not my birthday party. This is another party at my house.
MO: Were you ever present at her home?
SM: Many times.
MO: Were you ever present at her daughter’s first birthday party?
Objection! 352! Sustained!
Mendoza testifies that when they were younger the were very close. In their 20’s, going to movies, dinner, and parties. As they grew up they had children, and went to each others birthday parties, children’s parties.
MO: Did you have close contact with her in the 1980’s?
SM: Yes. (snip) (I) started nursing school in 1982. Stephanie was starting the police academy and we would do social things.
MO: (Did you see each other every day?)
SM: We saw each other several times a month, doing social things.
MO: Did she every mention anyone by the name of John Ruetten?
MO: Did she ever mention any of her boyfriends?
Objection! Hearsay! Sustained!
MO: Did you have a break-up with a boyfriend?
Objection! Relevance! Sustained!
MO: Did she ever help you with your break-up of your boyfriend?
MO: Did you think because of your relationship, you think you know her character?
Objection! Vague! Sustained.
MO: What kind of character...
Objection! Vague! Sustained!
MO: Do you have an (opinion about Ms. Lazarus being violent?)?
SM: I can’t imagine her being violent in any (of the?) farthest reaches of my imagination.
Objection! Sustained! Move to strike!
MO: Do you think she is a violent person?
Overland asks to approach.
Judge Perry chooses to send the jury out.
JP: The problem I have Mr. Overland is it’s too broad. I think you have to establish a foundation, but to ask the kind of questions you asked if she (thought?) (snip) she can do (this?) .....
I think Judge Perry then gives Overland an example of how he can ask the question. “Have you ever seen her act toward another person?” Judge Perry then goes onto explain the next question that he can ask.
PN: We never received this statement from this person. (snip) There were no questions like this that (the judge just presented that were acceptable).
Judge Perry further explains how he would like Overland to go about this questioning. Overland tells Judge Perry he wants to ask if Stephanie ever reported a gun stolen. Judge Perry states that’s hearsay. Overland argues that this is a prior consistent statement. Judge Perry responds, “Not as I see it.” The jury is brought back out.
MO: In all the years you’ve known Ms. Lazarus, have you ever seen her act in any way, a violent manner?
MO: Do you have an opinion (as to whether or not she could be violent?)?
SM: Not from the farthest reaches of my mind.
Direct ends and cross begins.
PN: You’re not familiar with the facts of this case?
PN: You’ve never had contact with your cousin at work? (snip) Your contact with her was at, was on social occasions, social events?
SM: Yes, yes.
PN: Family events?
Cross ends and there’s no more direct.
#3 ROBERT KIRK
Retired LAPD Officer. Employed from 1981 to April 2011. He got to know Stephanie Lazarus. He was assigned to patrol in Devonshire Division. Kirk is not positive about the time frames, from 1985 to 1986 when he knew Lazarus. During that time he went to Lazarus’ residence. She lived off of Rinaldi, near the 405 Freeway. It was a condo. He went to dinner there, but not often. The only time he went to her house was while on a work sanctioned dinner break.
Kirk also knew an officer John Ross, assigned to the Devonshire Division and a personal friend. Kirk does not recall if he ever saw photographs at Lazarus’ condo. He doesn’t remember if he ever saw a photograph of “that” individual.
RK: I don’t remember photographs from Ms. Lazarus’ home 25 years ago.
MO: Do you recall meeting with Stephanie Lazarus at a doughnut shop with Ross and another officer by the name of (Denford?)?
RK: I don’t specifically remember. You could meet like that six or seven times a year. I don’t remember that specifically.
Overland shows him a diary entry from Lazarus “work log” or “journal” and asks him to read it to himself to see if that refreshes his memory.
RK: It doesn’t ring any bells.
There is no cross of this witness.
The morning break is called. DDA Nunez tells me he was told to show me his tie. I’m in the back row speaking with the sisters who came to court and I squint to try to see it. It’s a dark navy tie, with thin quarter inch angled stripes about every two inches. At 10:40 AM the morning break is over but now we are missing Overland. Two minutes later he reenters the courtroom. One of the reporters reads a book while we wait while others do some last minute texting while we wait.
#4 MICHAEL ALEXANDER
Alexander is retired from the LAPD. He was with the department for 31 years. He started in March 1978 and retired in August 2009. He knows the defendant. They worked together in a patrol car at Devonshire Division, 1985 to 1986.
Overland shows the witness duty rosters and patrol logs for February 25th, 1986 and February 27th, 1986. He recognizes the documents and identifies them. On those two dates, he was assigned a patrol car with the defendant.
MO: In the first column, what is assignment 849?
MA: That was the unit designation for that night (shift), a 2 person car.
(This confirms what I was not clear about in the prosecutions case. When Lazarus worked on February 25th, 1986, it was an evening shift.)
Lazarus was assigned to the car with him. For both of these dates, Overland asks the witness many questions as to whether or not he remembers Lazarus having any injuries on her such as a black eye or scratches, or complaining about any injuries. He does not recall any injuries or think that she had any.
MO: Did you observe how she dealt with situations that caused for the use of force?
MA: I can’t recall.
MO: Do you ever recall during that one year (per?) (were you able to?) form an opinion whether she was a violent (op? person?)?
I miss the answer. Direct ends and Presby performs the cross.
SP: Do you have an independent memory of February 25h, 1986?
SP: Do you have an independent memory of the calls you went on? (snip) Of what the weather was like? (snip) Do you remember what she looked like back in 1986?
MA: No, no, no.
SP The only way you know you ever worked with her (is by reviewing the logs)? (snip) How would you describe her physical strength?
MA: Above average.
SP: Did she work out? (snip) Did she run? (snip) Did she lift weights?
MA: Yes. Yes. I don’t recall.
SP Do you have an independent memory of (her taking someone into custody? of taking her into custody?)?
MA: Not that I recall.
Cross ends and the witness is finished.
#5 GORDON WADE
Wade is an LAPD Officer. He is a Lieutenant, II. He knows the defendant but he doesn’t “know” her. They’ve met. they met in February, 2009. The office where he works, Internal Affairs Division, was being cleaned out. They were replacing the carpeting and there were lockers that needed to be moved. There were four lockers that still had locks on them after all the department employees were notified to clean out their lockers. The last time the unit had those lockers cleaned out was before he arrived in 2005.
They cut the locks on the remaining lockers (four). Two lockers belonged to Lazarus. Once the cut the locks and emptied them out, notified officers to claim their belongings. In the two lockers used by Lazarus, he found several uniforms, a 4” city issue revolver, a revolver he recognized as one the city issued and a matching holster that was city issued. There were bullets in there also, 38 Plus P bullets. He doesn’t recall how many bullets there were.
There are more questions about the ammunition found. He did not inventory the ammunition.
On cross examination, Wade states that the revolver he saw was a four-inch barrel weapon. I believe he testifies that the ammunition was not the type issued in 1986 but the current issue ammunition for that time.
The jury is sent out for a 402 discovery about the next witness’ possible testimony.
JEFFREY ALDEN THOMPSON
Employed by the LAPD SID. He is acting assistant director overseeing the the serology lab for the last three years. He’s been with the department since 2003.
Overland asks him a series of questions involving the annual review/certification of the LAPD lab with ASCLD/LAB. He has him read findings from a report issued in 1998. He’s just reading from the report. He was not involved in writing the report. After several questions, Judge Perry states, “I don’t see what the relevance would be.”
Overland responds something to the effect that the relation is (the lab?) is deficient in lab during that time and the jury (will?) determine (when?) items became in the possession of the lab.
JP: I don’t understand the argument.
Overland states that this is in relation to the GSR kits. He argues that the discrepancies in the property room log about the GSR kits means the log is unreliable.
JP: I think the destruction of the kits was explained (in the destruction records). (snip) I don’t see how we get there. (snip) Why don’t you go onto the next issue. I don’t this it’s relevant to know the deficiencies in the LAPD lab in 1998.
Overland now asks the witness about another document and the results of an inspection in 2004. He may have been a supervisor on the unit when the reports were filed. After a few more questions, Judge Perry interjects.
JP: I want to hear more about the 2004 and 2009 reports. I have a lot of trouble with the 1998 reports and they seem too remote in time. I don’t think it’s helpful and I think it will mislead the jury.
The witness reads more sections from the 2004 report.
PN: I object that this witness is only testifying by reading from the report.
There is some more testimony.
PN: Is counsel going to (have the witness?) (testify?) to the reliability....? MO: I’m just asking questions an he’s just giving answers.
Another issue is presented in the report. I see Nunez expend some energy by spinning/twirling his pen on top of his fingers again.
After the witness reads several more sections from the report, Judge Perry states, “I think the best thing would be to give me copies of this document. (snip) Mr. Thompson, you’re going to have to come back later.”
Judge Perry asks Overland to call his next witness. Overland states the next witness was scheduled for after lunch. Judge Perry states to call the jury back out so he can dismiss them for lunch. Judge Perry asks Overland if he can get his witness here by 1 PM. Overland states he could try.
Judge Perry dismisses the jury early for lunch and has them come back by 1:15 PM. He apologizes to them for the delay.
The jury is dismissed and then Judge Perry asks Thompson a few questions.
JP: Mr. Thompson, can you tell me was the LAPD lab ever accredited?
JP: As far as you know, it still accredited?
JT: As far as I know.
Thompson describes that independent auditors review lab procedures every two years and in the off years they perform their own internal audit.
JP: Thank you very much. We will let you know (if we need you back).
Judge Perry asks counsel to identify the particular parts of the 2004 and 2009 reports that are relevant to this case.
And we finally get to go to lunch. The sisters take me to lunch at Pit Fire on the corner of 2nd Street and Main.
After the lunch break, we’re back inside the courtroom. There were two more ladies who had come to court today that greeted me in the hallway. They said they came to court because of my descriptions on the blog on how to attend the trial.
When I sit down in my favorite spot in the front row at about 1:05 PM, DDA Nunez asks me if I have an “entourage” now. I reply, “I tell people that want to come (to court) how to come so they come to the trial.”
I see that the prosecution’s firearms expert, Daniel Rubin is in the well. He sits at the prosecution table next to DDA Presby. This is standard that the opposing side can have their expert witness sit in to listen to the other expert’s testimony.
I note that DDA Presby’s tie has a slanted stripe also. It’s in the opposite direction of DDA Nunez’ tie.
#6 PATRICIA FANT
Fant is a self employed, independent firearms examiner, and on the witness list with the LA County Superior Court. She was a deputy sheriff for (?) number of years. She then transferred to the Los Angeles County crime lab. She worked there for six years. She retired in 1999. Fant gives her CV. She’s performed abut 9,800 comparisons and has testified in federal and municipal court about 140 times.
(I’m pretty wiped out. It’s 1 AM and I need to get some sleep. I will continue with my notes on FANT on the train tomorrow morning, or later. Sprocket.)