Phil Spector: Prosecution's Opposition Motion to Defendant's Plea of Once in Jeopardy to the Lesser-included Offenses of Second Degree Murder

Updated!
Originally posted July 24th, 2008
I'm reading the latest prosecution motion that was filed earlier today in opposition to the defense's plea of once in jeopardy to the lesser-included offenses of second degree murder. It's a detailed packed 24 pages long and clearly shows how much "spin" the defense is willing to create to try to prevent the next jury from even considering lesser offenses. Did any of you watch during the first trial, the jury instruction battle the prosecution and the defense went through? It was a part of trial strategy not to charge on the lesser included offenses from both sides. In fact, it was the defense who originally raised this issue through motions as part of it's trial strategy.

Although this stuff hurts my head to read, it's quite interesting to see the arguments and facts the prosecution lays out. I will try my best to have the most important sections of this motion up on the blog sometime tomorrow, so look for this entry to be updated.

Update: July 26th, 2008

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STEVE COOLEY
LOS ANGELES COUNTY DISTRICT ATTORNEY
ALAN J. JACKSON, DEPUTY DISTRICT ATTORNEY (SBN 173647)
TRUC T. DO, DEPUTY DISTRICT ATTORNEY (SBN 191845)
MAJOR CRIMES DIVISION
210 W. TEMPLE STREET, 17TH FLOOR
LOS ANGELES, CALIFORNIA 90012
92130 974-3800

ATTORNEYS FOR THE PEOPLE OF THE STATE OF CALIFORNIA

Superior Court of the State of California

For the County of Los Angeles

CENTRAL DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
PHILLIP SPECTOR,
Defendant.

Case No. BA255233

HON. JUDGE LARRY P. FIDLER

PEOPLE'S OPPOSITION TO DEFENDANT PHILLIP'S SPECTOR PLEA OF ONCE IN JEOPARDY TO THE LESSER-INCLUDED OFFENSES OF SECOND DEGREE MURDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF.

Hearing: July 29, 2008
Time: 8:30 a.m.
Dept.: 106

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TO THE HONORABLE JUDGE LARRY P. FIDLER, DEFENDANT PHILLIP SPECTOR AND HIS ATTORNEYS OF RECORD, DORON WEINBERG AND DENNIS P. RIORDAN:

PLEASE TAKE NOTICE that on July 29, 2008 at 8:30 am or as soon thereafter as this matter may be heard in Department 106 of the above-entitled Court, the People of the State of California will oppose Defendant Phillip Spector's plea of once in jeopardy to the lesser-included offenses of second degree murder. The People's opposition will be based upon the attached memorandum of points and authorities, the files and pleadings in the above-entitled matter, the reporter's transcript of the trial, and on such further evidence and argument as may be introduced at the hearing of Defendant Phillip Spector's plea.

Dated: July 22, 2008
Respectfully submitted,

STEVE COOLEY
DISTRICT ATTORNEY OF LOS ANGELES COUNTY
BY: (signature)
TRUC T. DO
Deputy District Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES
I.
SUMMARY OF ARGUMENT
The court should deny Defendant Phillip Spector's (hereinafter "Defendant") plea of once in jeopardy to the lesser-included offenses of second-degree murder, namely voluntary and involuntary manslaughter, for the following reasons:

(1) Defendant cannot plead once in jeopardy to an offense he successfully persuaded this Court to not submit to the jury which had been empaneled to try him. United States v. Scott (1978) 437 U.S. 82, 89.

(2) The Court's mere refusal to instruct on the lesser-included offenses is not an acquittal of those offenses under double jeopardy principles. See Scott, 437 U.S. at 96-97. United States v. Martin Linen Supply (1977) 430 U.S. 564, 571-572; and Manokey v. Waters (2004 4th Cr. MD) 390 F.3d 767, 772-773 fn.7, 774-775, cert. denied by Manokey v. Waters (2005) 544 U.S. 1034.

(3)Neither double jeopardy nor judicial estoppel bar retrial of Defendant for the lesser-included offenses, where the People and Defendant requested the Court to not instruct on the lesser-included offenses as a matter of trial tactics. People v. Wilson, 43 Cal.App.4th 839, 841-849.

II.
STATEMENT OF FACTS
Notwithstanding the lengthy discussions had by the Court regarding instruction on lesser-included offenses, the defense cited only three (3) excerpts of the Court's comments on the subject. The defense has taken the Court's comments out of context to argue this Court reviewed the People's evidence and made a factual finding that the evidence was insufficient to prove voluntary and involuntary manslaughter. A thorough and fair reading of the entire record demonstrates that: (1) both the People and the

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defense requested the Court not instruct on lesser-included offenses for tactical reasons; and (2) irrespective of the parties' trial strategies, this Court independently determined that neither party had presented evidence or a theory to warrant the jury's consideration of lesser-included offenses. The court never impliedly or otherwise factually acquitted Defendant of voluntary or involuntary manslaughter.

When discussions of the proposed jury instructions began on August 29, 2007, the Court asked, "are the People seeking any lessers?" To which, the People answered, "no. . . not at this time." (RT vol. 64, 11003: 14-17). The Court then stated:

"I think we are all in agreement. Let me just get a statement --- besides which I think it is a correct statement of the law. I have for weeks now been thinking of alternatives, and 'what if this, what if that,' just sort of trying to get a head start on whether there is a possibility of voluntary manslaughter or involuntary, and based on the facts of this case and also based on the defense, I don't see it. The problem with a sudden quarrel would be there is the reasonable man standard, which I don't think anybody would say has possibly been shown, which would mandate a voluntary manslaughter. On an involuntary, given the fact that the gun is inside her mouth, you can't possibly get to things like misdemeanor manslaughter or anything else but where it comes to a second degree, if they find --- I mean, I don't see a theory."

(RT Vol 64, 11003: 18-11004:9).

The court then asked defense counsel, "So this is a knowing tactical decision, plus your belief in what the law shows; is that correct?" (RT 11004:8-9) (emphasis added). Dennis Riordan ("Riordan"), for Defendant, answered: "It is your honor." (RT vol. 64, 11004:10) (emphasis added). Mr. Riordan further explained:

"I will state for the record that unlike the situation in which there could be lesser-includeds [sic] --- and we are asking the Court to roll the dice for

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us --- this is actually a case in which tactics aside, we agree with the Court that there simply isn't sufficient evidence to support a theory other than either acquittal or second degree murder."

(RT Vol. 64, 11004:11-17) (emphasis added). The court responded: "Right. I mean, I think initially when the case started out there was a lot of talk of alcohol intoxication, but nothing was presented to the jury that would be sufficient to proceed with that. So based upon that, the Court will instruct only on murder." (RT Vol. 64, 11004: 18-23) (emphasis added).

Discussions on jury instructions continued on September 5, 2007. In response to the court's inquiry regarding Defendant's renewed objection to the 1101(b) evidence, Mr. Riordan stated: "Given the arguments and the jury instructions last week, both sides really agreed that this was an issue of identity and nothing else, and for that reason the court has decided that there will not be lesser included instructions which be given in a case where mental state was at issue." (RT Vol. 65, 11057:21-11058:16) (emphasis added). On September 6, 2007, Mr. Riordan further explained the defense's position on the lesser-included offenses:

"Okay. but the basis on which we agreed that there would not be lesser included is that the insertion of a gun in someone's mouth is so clearly not only an act dangerous to human life but one that any human being would know involved a conscious disregard of human life, that absent some affirmative evidence of, you know, intoxication or lack of mental state and the defendant testifying to that, that it removes the mental state element from the case, and therefore, there are no lessers."

(RT, Vol. 65, 11435:2-10) (emphasis added).

On September 7, 2007, the Court reiterated the following to guide the parties in closing arguments:

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"Just to make it clear, the theories have been presented by both sides. Both sides have pretty much up to this point agreed or stipulated that the only appropriate instruction is that of second degree murder, with no lesser. As I believe I have made it clear, and if I have not, I am not bound by that. If the evidence suggests whether or not the parties don't want me to give lesser, if there is a reasonable suggestion by the evidence that lesser be given, if there is some substantial evidence, reasonable evidence that the jury can consider, it doesn't make any difference what the parties or I think about it, it's whether its something that they should consider. At this point I haven't heard it, and I think that we are in agreement. Basically, the question is whether there is any evidence that would suggest other than a disregard, the instructions for second degree murder, conscious disregard for human life that is set forth in CALCRIM 520."

(RT Vol. 65, 11445:4-23) (emphasis added). Again, Mr. Riordan added:

"Your honor, I could not agree more with the Court that this is a case where lesser-includeds [sic] are not required and not justified, and that is because the People's theory throughout the case has been that Mr. Spector committed the act that caused the death of Miss Clarkson."

(RT Vol. 65, 11447:10-15). On September 10, 2007, after closing arguments, the Court instructed the jury on second-degree murder only.

On September 18, 2007, the sixth day of deliberations, the jury indicated they might be deadlocked. (RT vol. 59, 11712:24-27). At this time, the Court raised the possibility of a sua sponte duty to instruct the jury on a misdemeanor manslaughter theory of involuntary manslaughter under People v. Lee (1999) 20 Cal.4th 47, which held a trial court erred in failing to sua sponte instruct on that theory of involuntary

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manslaughter based on a brandishing of a weapon.(1) (RT Vol. 69, 1171f3:2-11715:3). On September 19, 2007, the court heard oral argument on this issue. Again, Defendant continued to object to any lesser-included offenses, filing a second memorandum of points and authorities to state his opposition on September 19, 2007.

The People, however, requested the court instruct on a misdemeanor manslaughter theory of involuntary manslaughter under Lee to avoid error only. (RT Vol. 70, 11755:6-22). In doing so, the People made clear that both parties had not requested instructions on the lesser for tactical reasons. Moreover, the People had never argued "there was no evidence" to support lesser-included offenses, but that the evidence went "beyond" the lesser-included offenses. On September 19, 2007, Deputy District attorney Alan Jackson ("Jackson") stated:

"Mr. Riordan indicated at first blush that there are three factors that he believes are determinative in this court's decision as far as giving an instruction or not giving an instruction concerning a lesser. He says, number one, there is no substantial evidence in the record to support it. ... [As to this argument,] there needs to be a distinction made between what the defense is saying is no substantial evidence supporting the theory. It's impossible to say that there is not substantial evidence in the record to support a misdemeanor manslaughter instruction. . . . I'll phrase it as a misdemeanor manslaughter instruction based on brandishing. That's impossible to say. When the Court spoke on the record, which Mr. Brunon quoted,

(1) In Lee, the defendant, who had a blood alcohol level of .33 to .39, retrieved a .357 magnum Smith & Wesson handgun during an argument with his wife. As the couple pushed each other with the gun between them the wife sustained a close contact gunshot to the head. There were no witnesses to the gunshot. A jury acquitted the defendant of second-degree murder and convicted him of voluntary manslaughter. Lee, 20 Cal.4th at 52-54. The California Supreme Court held the trial court erred in failing to sua sponte instruct on a "misdemeanor-manslaughter" theory of involuntary manslaughter, based on evidence of a brandishing of weapon. The court, however, affirmed the voluntary manslaughter conviction because it found the jury, having been instructed on two other theories of involuntary manslaughter, had the opportunity but rejected a verdict of involuntary manslaughter. Id at 62.

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And the Court indicated 'I don't see it.' And you remember that dialog that we all had, or had, and you said, 'if this is anything,' I mean he put the gun in her mouth. If the jurors believe the facts as they have been presented, the gun was actually inside her mouth, and everybody here at the table would agree that that is in fact assault with a deadly weapon, it goes' beyond brandishing. That word 'beyond' is the seminal phraseology. It is not that there is no evidence to support brandishing or support the misdemeanor manslaughter. It's that we all surmised that it was that the conduct was grave enough that it subsumed misdemeanor brandishing and went beyond it to a different degree. The same as Justice Brown articulated in her concurring opinion. I think that's why the Court pointed us to that language in Lee. In her concurring opinion, Justice Brown said something to the effect that in that case, under those facts in her opinion that a reasonable jury would have to believe that the conduct went there to the manslaughter and substantially further, but the manslaughter is in fact factually and legally subsumed within the conduct of the assault with a deadly weapon in that case. . . . So I want to make sure I start out by saying what the proper playing fields should be. . . . There is no reasonable argument that the facts don't support a brandishing. You can't assault someone with a gun without first brandishing that gun. Therefore, it is supported by the facts. The Court took the position, and I think we all did, that yeah, it is supported by the facts, but, my goodness, based on the facts, it appears to go beyond that as well. Actually going into an assault with a deadly weapon, actually putting a gun in someone's mouth. That is a far cry from saying the facts don't support it."

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(RT Vol. 70, 11748:13-11750:17) (emphasis added). The Court then asked the People, "notwithstanding Lee, if the facts are so clear, why didn't you argue them and why didn't you ask the Court to include the lesser?" (RT 11753:16-18). Mr. Jackson responded, "Strategically, we didn't want it, the defense didn't want it. . . . To answer the court's question pointedly, why didn't we ask for it, because it's a strategic position." (RT11753:24-25, 11755:6-9).

Defendant notably omitted the following comment by the Court in its analysis of the lesser-included offenses:

'The sole reason I did not give manslaughter instructions in this case originally was because we did not have a theory. I specifically asked is there any theory upon which a manslaughter conviction can rest? I said, I can't [think] of one because we did not see a brandishing. And the reason we did not see a brandishing was that everyone was in agreement that whatever happened in this case, it was a completed assault. It had to go beyond brandishing, which took brandishing away from the jury. It took it away from any possible consideration." (RT Vol. 70, 11860:17-26). "Both sides have told me consistently and I have agreed with you, there is no brandishing because it's gone beyond it in this case."

(RT vol. 70, 11861:18-20). Ultimately, the Court declined to instruct the jury on a misdemeanor manslaughter theory of involuntary manslaughter, finding "it would be inappropriate at this time [i.e. mid-deliberations] to instruct the jury with a new offense, that being the lesser offense of manslaughter, because I believe it's basically directing them, if at all possible, that's what they should find, and that is inappropriate," (RT Vol. 70, 11773:8-14).
--------------------
The next 10-24 pages outline section III, "Argument And Authorities." I will excerpt some of those sections. Here is an abbreviated list of the cases that are cited throughout the next fourteen pages.

Ohio v. Johnson (1984)
United States v. Scott (1978)
Green v. United States (1957)
People v. Lee (1999)
People v. Breverman (1998)
United States v. Martin Linen Supply (1977)
People v. Hatch (2000)
People v. Lagunas (1994)
Hudson v. Louisiana (1981)
People v. Trevino (1985)
People v. DePriest (2007)
Manokey v. Walters (2004)
People v. Asbury (1985)
People v. Wilson (1996)
--------------------

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excerpt:
The Double Jeoparyd Clause of the Fifth Amendment protects a criminal defendant from a second prosecution for the same offense after acquittal or conviction, and against multiple punishments for the same offense. Ohio v. Johnson (1984) 467 U.S. 493, 498. It does not, however, protect a criminal defendant from a second prosecution of an offense when "he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him."
end page excerpt:

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excerpt:
Here, Defendant, to use his own words, "went ot of his way" to consistently object to instructions on the lesser-included offenses, including filing two written memoranda of points and authorities in opposition to the lesser-included offenses (dated August 27, 2007 and September 19, 2007). It is transparent that Defendant objected to the lesser-included offenses strictly for tactical reasons, at one point "asking the Court to roll the dice for us." (RT Vol. 64, 11004:11-17). Indeed, prior to the mistrial, the People requested the jury be allowed to consider misdemeanor manslaughter to avoid error under Lee, but Defendant objected. (RT Vol. 70, 117565:6-22). While a trial court has a sua sponte duty to instruct on lesser-included
end page excerpt:

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excerpt:
offenses "even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given," People v. Breverman (1998) 19 Cal.4th 142, 154, the remedy for error (if not harmless) is reversal of his conviction. But it is patently absurd for a defendant to successfully object to the jury's consideration of a lesser-included offense for tactical reasons and then plead he is placed once in jeopardy of life or limb on that offense. The double Jeopardy clause of the Fifth Amendment was not intended for such gamesmanship.
end page excerpt:

Page 14:
excerpt:
By selectively taking, out of context, three (3) excerpts of the Court's comments from lengthy discussions of the appropriateness of the lesser-included offenses, Defendant has distorted factually the Court's analysis in its refusal to instruct on the lesser-included offenses. This Court did not, as Defendant contends, rule the People's evidence was insufficient or failed to prove the lesser-included offenses of voluntary or involuntary manslaughter. Rather, the court and both parties clearly recognized that the People's evidence, if believed by the jury, established that Defendant's conduct went beyond manslaughter.
end page excerpt:

Page 21:
excerpt:
Again, Defendant has misstated the facts. It is not true that the "prosecutor went out of his way to seek an order from the Court precluding the defense from making any argument regarding any lesser offense upon which the jurors had not ben instructed." (Defendant's Plea and Motion at 7:6-7). Defendant did. It is also not true that the People took "the position at the first trial that thre was no evidence to support instruction on the lessers." (Defendant's Plea and Motion at 7:11-12). The People never argued "there was no evidence to support instruction on lessers."
end page excerpt:

Page 23:
excerpt:

III.
CONCLUSION
This Court should deny Defendant's plea of once in jeopardy to any lesser-included offenses of second-degree murder. Defendant's Double Jeopardy claim flies in the face of logic and law. The protections of the double Jeopard clause were not
end page excerpt:

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intended to enable gamesmanship, in which a criminal defendant may choose to not proffer mitigating evidence, successfully object to the giving of a lesser-included offense, and later complain he is oppressed by the Government's repeated attempts to convict him of the lesser-included offense. Finally, it is only by distorting factually the record and conflating the standard of review for sua sponte instructions and an 1118.1 or 1181 substantial evidence test, that Defendant has argued this Court acquitted him of the lesser-included offenses. The record is unambiguous. The Court and both parties clearly stated the People's evidence necessarily proved the lesser-included offense but had gone "beyond" the lesser to establish the greater offense of implied malice, second-degree murder. For that reason, this Court properly did not instruct on the lesser-included offenses since it is "required only where there is 'substantial evidence' from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense." DePriest, 42 Cal.4th at 50 (emphasis added).

Dated: July 22, 2008
Respectfully submitted,

STEVE COOLEY
DISTRICT ATTORNEY OF LOS ANGELES COUNTY
By: (signature)
TRUC T. DO
Deputy District Attorney
--------------------
Did y'all get all that? Read this stuff for hours and your head will pound a bit like mine did. Were you able to see the underhanded move the defense was trying to pull with it's motion? Just think about how much time it takes to craft something like this. To pick and choose tiny pieces of the trial transcript so that it appears your arguments are truly representing the trial record and then search case law, quoting it to bolster your arguments. And think about how long it takes to do the exact opposite. Research and present an opposition motion.

Consider that Riordan (who is working the case with Weinberg) is a formidable adversary in crafting jury instruction arguments. (Remember special jury instruction #3?) Kim of The Darwin Exception pointed it out last year in this entry:

The new lawyer on the Spector’s team, Dennis Riordan, was an advisory committee member of the task force that actually revamped the California jury instructions.

Don't underestimate Spector's new defense team. It's a safe bet they will be presenting more motions like this as this case gets closer to its retry date.

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