Phil Spector Retrial: The Prosecution's Recent Motions

A few days ago, I received a copy of the prosecutions motions to present a sixth 1101(b) witness (also known as "prior bad acts" or "PBA"), as well as to include deceased Dianne Ogden's testimony from Spector's first trial at his upcoming second trial. You can purchase a copy of the motion from the Los Angeles County Court's web site, but I am reproducing a section of it here for those who can not purchase it.
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STEVE COOLEY
District Attorney of Los Angeles County
By: ALAN JACKSON, Deputy District Attorney
Major Crimes Division
Los Angeles County District Attorney's Office
210 W. Temple Street, 17th Floor
Los Angeles, CA 90012

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

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

Case No. BA2552333
NOTICE OF MOTION AND MOTION
TO ADMIT EVIDENCE OF OTHER
CRIMES
Date: July 29, 2008
Time: 8:30 AM
Court: Department 106

TO THE HONORABLE JUDGE FIDLER, AND TO DORON WEINBERG, COUNSEL FOR THE DEFENDANT, PHILLIP SPECTOR:

PLEASE TAKE NOTICE THAT ON JULY 29, 2008, or as soon thereafter as the Motion can be heard, the People of the State of California will move this court to admit evidence of defendant Spector's gun-related violence against victim Norma Kemper as evidence of other
crimes, pursuant to California Evidence Code Section 1101(b).

This Motion to Admit Evidence of Other Crimes will be based on the attached Points and Authorities as well as any and all facts recited herein, statutory and case law authority, the court file, and all oral arguments and documents submitted on the People's behalf at the hearing on the Motion.

Dated: July 14, 2008
Respectfully submitted,
Steve Cooley
District attorney of Los Angeles County

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By (signature here) Alan Jackson/ by RSG
ALAN JACKSON
Deputy District Attorney

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Steve Cooley
District Attorney of Los Angeles County
By: ALAN JACKSON, Deputy District Attorney
Major Crimes Division
Los Angeles County District Attorney's Office
210 W. Temple Street, 17th Floor
Los Angeles, CA 90012

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

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

Case No. BA2552333
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO ADMIT EVIDENCE OF
OTHER CRIMES
Date: July 29, 2008
Time: 8:30 AM
Court: Department 106

POINTS AND AUTHORITIES

I. BACKGROUND

On February 3, 2003, Phillip Spector shot Lana Clarkson to death in the foyer of his Alhambra home. After the shooting, Spector, who was intoxicated and who had been drinking alcohol all evening, opened the back door to the house, stood in the doorway and told Adriano DeSouza, his driver, "I think I killed somebody." Only Spector and Clarkson were in the house at the time. Within minutes, the police were on the scene, and Spector was eventually taken into custody.

Defendant Spector has an on-going pattern of gun-related violence against women stemming from alcohol consumption; particularly, women in whom he has a romantic interest

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and whom he seeks to control, if even against their will. In the People's first prosecution of Spector, this court ruled as admissible under Evidence Code section 1101(b) the testimony of five women each of whom testified about Spector's gun-related violence against them occurring between the mid 1970's and 1995---Devra Robitaille in the mid- 1970's and again in the mid- 1980's, Dianne Ogden-Halder in 1988, Melissa Grosvenor in 1991, Dorothy Melvin in 1993 and Stephanie Jennings in 1995. In January of 2008, the People learned of another female victim: Norma Kemper. On January 15h, 2008, Kemper told investigators that on the night after Spector hired her as an assistant in 1996, she and Spector went to dinner whereupon Spector, intoxicated and angry that she rebuffed his advances, displayed a small hand gun inside his suit jacket and said, "You know I could kill you right now." Following the investigators' interview, the People timely disclosed this information to defense counsel. Pursuant to Evidence Code section 1101(b), the People seek to admit the incident involving Kemper as evidence of (1) common plan or scheme, (2) the existence of implied malice and (3) the absence of mistake or accident.

II. SPECTOR'S ADDITIONAL HISTORY OF GUN-RELATED VIOLENCE

The five gun-related incidents previously admitted into evidence by the court all occurred as a result of what was described as a change in Spector's personality after he consumed alcohol. The newly discovered incident involving Norma Kemper further demonstrates this ever-present pattern that Spector's gun-related violence stems from alcohol consumption. This similarity between the incident involving Kemper and the shooting of Lana Clarkson is extremely probative evidence that pointedly addresses the People's theory of the case.

A. The 1996 threatened assault of Norma Kemper

Norma Kemper met Spector in 1996 after her interviewed and hired her over the phone to be his assistant. Kemper held this position for 4 years, from 1996 to 2000. She worked mainly from her home but was in Spector's Alhambra home on several occasions. At no time during her employment with Spector did Kemper engage in anything other than a strictly business relationship with him.

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On the evening after Spector hired her, Kemper was invited to eat dinner with Spector and his friend, Jay Romaine, at Dan Tana's restaurant. She was picked up by Spector in his car and taken to the restaurant. When they arrived, Spector and Romaine sat on one side of the table and Kemper on the other side. During the evening, Spector consumed several alcoholic beverages. While Kemper does not remember if she had consumed any alcoholic beverages, she states that if she had, it would have only been one since she rarely drinks. At one point, Spector leaned over the table and tried to kiss her. Kemper rebuffed his advances and told him to stop. Spector sat back and opened up his suit jacket. Kemper saw he was wearing a shoulder holster with a small hand gun inside. Upon brandishing his gun, Spector said to Kemper, "You know I could kill you right now."

Kemper became very angry but calmed down as the evening progressed. After dinner, Spector took her to the House of Blues where he continued to consume alcoholic beverages. Upon arriving at the House of Blues, Kemper told Spector that she wanted to go home. After Spector repeatedly ignored her requests to leave, she had a friend who she saw at the restaurant take her home. The next day, Kemper told Spector that he would regret it if he ever harmed her.

At the January 15 meeting with investigators, Kemper stated that Spector was drunk at the time of the incident at Dan Tana's. Additionally, she said that whenever Spector drank alcohol and took his psychiatric medication together, his personality would change and he would become "mean."
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The following twenty-one pages contain the rest of the argument to support the motion. It's very detailed and specific. There are numerous cases cited to support the argument that this testimony qualifies to be admitted into evidence under 1101(b). It took me almost an hour to read the entire motion and argument to donchais over the phone, while the Rosa trial was on lunch break. If you would like an understanding as to this specific piece of California Evidence Code law, and why this incident qualifies to be admitted under 1101(b), I recommend you download a copy of the motion and read it for yourself. It's very educational.

Page 17 of the argument has some more relevant information:
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B. Probative Value is Not Outweighed by Prejudical Effect

Like the use of Spector's uncharged firearm assaults to prove common design or plan, the use of his uncharged firearm-related violence to show the knowledge required for implied malice survives any challenge under California Evidence Code section 352.

Again, Spector's plea of not guilty places the basic issue of his mental state at issue. (People v. Steele, supra, 27 Cal.4th at pp. 1243-1244.) Moreover, his mental state and state of sobriety has been and will undoubtedly continue to be disputed at trial. The issue, therefore, is material to the prosecution's case, and that materiality increases the probative value. (Id. at 1246).

Another fact bolstering the probative value of this uncharged act of violence is that while Norma Kemper had heard about a previous incident between Spector and Dorothy Melvin, she does not know the specific facts of that incident nor does she know any of the other victims of the uncharged crimes already deemed admissible by this court. Thus, it is unlikely she colored or shaded her statement to fit the facts of the other uncharged crimes. (See People v. Ewoldt, supra, 7 Cal.4th at 404-405). Moreover, she told her husband about the incident at the time it happened. Additionally, she did not contact the prosecution in this case, investigators found her.

None of the uncharged crimes resulted in Spector's prosecution or criminal conviction. The prejudicial effect of this, however, is not appreciable since the uncharged crimes are far less inflammatory than the charged offense. There is, therefore, little likelihood of jurors punishing Spector for the earlier acts even if they disbelieve he was involved in the Clarkson homicide. (Id. at 405).
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You have to remember that this is the same Judge who allowed Vince Tannazzo to take the stand. Does anyone remember what Tannazzo told the jury? Tannazzo told the jury about two separate incidents that occurred two years in a row, at Christmas parties hosted by Joan Rivers. According to Tanazzo, Spector called all women the "C" word (even Judge Fidler couldn't say it in his courtroom) "who deserve a bullet in their f***ing heads." The other fact that weighs more for Fidler to let Kemper testify is the fact that this event occurred in 1996, and all the other 1101(b) witnesses were earlier, the latest being Stephanie Jennings in 1995. I'm betting Fidler will allow Kemper to testify.

Donchais and I both thought it was more than a bit strange that she continued to work for Spector for four years after this incident. I would have immediately hired a cab to get home that night from Dan Tana's ~ much less gotten back in the limo for a ride to The House of Blues ~ but not Kemper. Why did she stay to work for him? It's hard to fathom, but did Spector have charisma back then? I can't imagine that a job with Spector was the be all to end all, but it must have been for Kemper. Michelle Blaine has her own take on it.

The prosecutors' are also seeking to admit Dianne Ogden's testimony in the first trial via video tape and transcript. This motion was a short 10 pages verses 26. I'll skip the argument intro that details Ogden's testimony and go straight to the sections that support admitting her testimony.
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II. MS. OGDEN IS LEGALLY UNAVAILABLE PURSUANT TO CAL. EVID. CODE § 240.

When a declarant is "dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity," they are considered "unavailable as a witness." Cal. Evid. Code § 240(a)(3) 2008. the declarant's unavailability must be proved by a preponderance of the evidence. People v. Turner (1990) 219 Cal.App.3d 1207. Ms. Ogden died on December 29, 2007. (See Exhibit A, Certificate of Death). Ms. Ogden is therefor now legally unavailable pursuant to Cal. Evid. Code § 240(a)(3).
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(And before y'all ask, no, I do not have a copy of Ogden's death certificate. However, the LA Times article indicated the cause of death was accidental overdose of prescription medications.)
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III. MS. OGDEN'S FORMER TESTIMONY MEETS THE REQUIREMENTS OF CAL. EVID. CODE § 1291 AND IS ADMISSIBLE AS AN EXCEPTION TO THE HEARSAY RULE.

Hearsay evidence may be admitted if it meets the requirements of the exception for former testimony offered against a part to a former proceeding. The proffered evidence meets the requirements for this exception. Evidence Code § 1291 reads in pertinent part:

Evidence of former testimony is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and . . . [t]he
party against whom the former testimony is offered was a part to
the action or proceeding in which the testimony was given and had
the right and opportunity to cross-examine the declarant with an
interest and motive similar to that which he has at the hearing.

In order for a witness's former testimony to be used for any purpose, the proponent must show the testimony was given under oath in a former proceeding by an unavailable witness, and it is offered against one who was a party to the former proceeding and who had the same right and

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opportunity to cross-examine. finally, a similar interest and motive in cross-examining must exist when the former testimony was given, as he or she would have at the present trial.

The California Supreme court has applied this well reasoned rule to situations where the defendant's motive in cross-examination may differ somewhat from his motive in the present trial. People v. Carter (2005) 3 Cal.4th 114, 1173. As such, when it comes to analyzing the admissibility of prior testimony for Cal. Evid. Code § 1291 purposes, the courts have held that the defendant's motive in cross-examination "need not be identical, only similar." Id. In the instant matter, Spector's motive in cross-examination is therefore more than adequately similar to meet the evidence code standard.

In this case the declarant is unavailable because she passed away on December 29, 2007. Her former testimony was given under oath, during the first trial in the same action. (See Exhibit B, RT 1944-1945). The facts fit the requirements because the testimony is being offered against the defendant, who was a party to the former proceeding. Mr. Spector had the right and opportunity to cross-examine Ms. Ogden during the first proceeding. He did so on May 7th, 2007. The interest and motive in cross-examining Ms. Ogden in the prior proceeding is clearly similar to that which he has in the present trial. Ms. Ogden's testimony was previously deemed relevant and admissible in the People's case-in-chief pursuant to Cal. Evid. Code§ 1101(b). The People presently intend to use that same testimony for the same reasons, and California courts have sanctioned such use.

IV. THE USE OF MS. OGDEN'S VIDEOTAPED TESTIMONY IS PERMISSIBLE, EVEN PREFERRED.

The People seek to introduce Ms. Ogden's former testimony by way of both the certified

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reporter's transcript, as well as the videotape of the prior proceeding. Such use of video evidence is permissible and even preferred by courts as the most accurate evidence of former testimony. In a criminal prosecution a party may introduce a videotape of the testimony of an unavailable witness if such a video evidence exists. (Cal. Pen. code § 1345). In People v Moran (1974) 39 Cal. App.3rd 398, 407-412 the court held that a videotape of the preliminary hearing testimony of a witness who died before trial was admissible at trial. Id. (See also, People v. Ware (1978) 78 Cal App 3d 892 [videotape testimony allowed]).

In this case Ms. Ogden's testimony was videotaped in the Court's and the defendant's presence. The original transcript with the reporter's certification is presumed to be authentic under Cal. Evid. Code § § 1452 and 1453. Dianne Ogden's testimony was properly transcribed and videotaped on May 7, 2007. The videotaped testimony in this case therefore clearly meets the same authentication standard.

Moreover, in Moran the court even made reference to instances where the videotaped evidence was more accurate than the transcript in which some words had been juxtaposed. Moran, 39 Cal. Ap.3rd at 406, fin. 4. It goes without saying that a jury is the instant matter would be benefited by watching the live taped testimony of Ms. Ogden, having the advantage of hearing exactly what she said, and being able to observe her demeanor, inflection and attitude during testimony as well. (See Moran, 39 Cal. App.3rd at 406, fn. 4 [court noting that videotaped testimony can be more accurate than the reporter's transcript alone.]).

Finally, the appropriate redactions for sidebar discussions, objections, rulings and other arguments made outside the presence of the jury have been made to the trial transcript and videotape that will be provided to the jury. Additionally, the redacted videotape of the Ms.
Ogden's testimony is available for the court's review.

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V. THE CAUSE OF DEATH IS NOT RELEVANT.

Evience Code section 350 states, "No evidence is admissible except relevant evidence." (Cal Evid. Code § 350 (2008)). The circumstances surrounding the death of Dianne Ogden are not relevant to the proceedings and should thus be inadmissible. Specifically, the cause of her death has no tendency "to prove or disprove any disputed fact that is of consequence to the determination of the action." (Cal. Evid. code § 210 (2008)).

In the event that this court finds such evidence relevant, however, it should still be excluded because the degree of relevancy it may possess is substantially outweighed by the probability that its admission will necessitate undue consumption of time, create confusion of the issues and/or mislead the jury.

Evidence Code section 352 provides that the court in its discretion may exclude evidence if it's admission will "necessitate undue consumption of time" or confuse the jury. (Cal. Evid. Code § 352 (a) (2008)). Moreover, the power of the trial court to exclude evidence under this section was specifically preserved under Proposition 8.

In People v. Wright (1985) 39 Cal. 3d 576, the core issue to be decided was whether the defendant committed first degree murder. Accordingly, the Supreme Court of California found that the trial court properly excluded evidence that the victim had been under the influence of heroin during a previous arrest and struck a proper balance between the evidence's slight probative value and the substantial chance of prejudice and confusion. The court explained that:

The prosecution is accorded protection under Cal Evid. Code §
352, similar to that of the defense, from the use of prejudicial
evidence with little probative value. . . Moreover, evidence that is
relevant to the prime theory of the defense cannot be excluded in

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wholesale fashion merely because the trial would be simpler
without it. The "prejudice" referred to in § 352 applies to
evidence . . .which has very little effect on the issues. Thus, the
balancing process mandated by § 352 requires consideration of the
relationship between the evidence and the relevant inferences to be
drawn from it, whether the evidence is relevant to the main or only
a collateral issue, and the necessity of the evidence to the
proponent's case as well as the reasons recited in § 352 for
exclusion.

(Id. at 585 italics added.)

Furthermore, in Kessler v. Gray (1978) 77 Cal.App.3rd 284, the court set forth relevant factors which judges should weigh as follows:

Reasonable exercise of trial court discretion. . . requires that the trial
judge balance the probative value of the offered evidence against
its potential of prejudice, undue consumption of time, and
confusion. . . That balancing process requires consideration of the
relationship between the evidence and the relevant inferences to be
drawn from it, whether the evidence is relevant to the main or only
a collateral issue, and the necessity of the evidence to the
proponent's case as well as the reasons recited in section 352 for
exclusion...

(Id. at 291, italics added)

The evidence at issue here, Dianne Ogen's cause of death, is peripheral to the key issues to be resolved by the jury, will entai undue consumption of time and will tend to confuse the jury. for those reasons, any reference to or evidence of her cause of death should properly be excluded.

CONCLUSION

Since the previous testimony of the witness meets the requirements of Cal. Evid. Code § 1291 and for all the reasons stated above, the People respectfully request that this Court introduce the testimony in video format in the above entitled case. Additionally, this court should exclude any reference to or evidence of the cause of Dianne Ogden's death.

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Dated July 14, 2008
Respectfully submitted,
STEVE COOLEY
District Attorney of
Los Angeles Country
By
(signature here) Alan Jackson/ by RSG
ALAN JACKSON
Deputy District Attorney
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So what does everyone think of the argument to present Dianne Ogden's testimony by videotape and exclude the jury from hearing about her cause of death? Do you think these motions will succeed on July 29th?

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