Tuesday, November 25, 2014

Michael Thomas Gargiulo Preliminary Hearing - June 21, 2010, Day 1, Part I

Michael Thomas Gargiulo

UPDATE 11/26: edited for spelling, formatting, clarity; added referenced case links

This is a synopsis of the preliminary hearing conducted in the Michael Gargiulo case on Monday, June 21, 2010. Since I only started covering the case since 2012, I did not attend the prelim. Over the next two months, I will be posting an abbreviated account of the testimony and evidence presented against Gargiulo. Sprocket

Gargiulo Case QUICK LINKS
Preliminary Hearing QUICK LINKS

Monday, June 21, 2010
The Michael Thomas Gargiulo preliminary hearing begins in Dept. 108, Judge Michael Johnson presiding.

The parties state their appearances for the record. DDA Marna Miller for the people. Defense attorney Charles L. Linder for the defendant. He is assisted by Abraham C. Linder, law clerk. Also representing Mr. Gargiulo is defense attorney Dale Rubin.

Before the first witness is called, there is subpoenaed record response that was taken care of. Next, the court outlines how the scheduling will go: Day by day, and a full a day as possible. Court will be dark Wednesday afternoon, June 23.

The court asks if there are any other issues. Dale Rubin (who is assigned the penalty phase of the potential trial) tells the court that he will not be present every day. However, he is here to address the issue of the people’s 1101(b). The parties/court will be working off of the amended felony complaint filed November 12, 2009. The court is ready to proceed. The court reviewed the 1101(b) motion. There was no written response to the motion by the defense.

Rubin tells the court that he has been in contact with the DA, but that it has been difficult for him to get a response together. He did not know that some witnesses would be called today.  He had asked for additional time to respond. The defense objects to the 1101(b) evidence coming in. Rubin asks the court to look at People vs. King, a 2010 ruling where there are prior uncharged acts in which the defendant denies that they occurred or that he’s involved.  Rubin also states that he spent many hours trying to find if there was case law about submitting 1101(b) evidence in a prelim. In his 35 years in practice, Rubin tells the court he’s “... never had it happen where it’s been asked to do it at a prelim.” Rubin argues that the problem is the DA’s burden is just probable cause. Rubin continues to argue several other points. Rubin admits that the defense is not prepared to cross examine these witnesses if they take the stand today. They have not done the necessary investigation into the 1101(b) (uncharged crimes).

DDA Miller responds. She points out that discovery for the 1101(b) was provided to the defense over a year ago.  In May, DDA Miller notified the defense she would be presenting the 1101(b) evidence at the preliminary hearing. She filed her motion well in advance of the prelim hearing date and served both counsel on June 9 via email. Although Mr. Rubin states he has been in contact with her, she never received a response from either counsel. “Based on my moving papers and based on the facts and the law as I have stated in my moving papers, this is exactly the type of case that 1101(b) does come in. It does show motive. It does show a common plan or scheme.”

The court asks the people the names of the specific 1101(b) witnesses.

Ashley Green, Dorothy Hass, and Maria Gurrola, a DNA representative from Chicago.  The people will also be Prop 115‘ing some of the officers on the scene at that (Chicago) murder. There is a bit more discussion about which witnesses will be Prop 115‘ing.

The court asks, “Why is it necessary to present these witnesses at the preliminary hearing? What’s the purpose? Is it to establish probably cause? Is it to memorialize their testimony or what?”

DDA Miller replies, “Well, I think it’s part and parcel for both the memorialization of their testimony. ..I think their testimony is extremely helpful to the trier of fact, whether it’s you or a jury at the future date. I think it’s very important to hear in terms of context.”

DDA Miller is not sure how much the court wants regarding what they have on the LAPD case, but she feels it’s important for the court to know the events surrounding that case, since there is a time period between the LAPD murder and the LASD murder.

The court asks if there’s anything else from either the people or defense. Mr. Rubin has one last argument to present. Mr. Rubin explains that when he learned that there was going to be 1101(b) evidence presented he immediately contacted DDA Miller. Rubin states, “... I’m sorry. I have a life. I had three graduations and children moving back from college in this time period, beginning of June, very busy. I wanted to get started on it. ... The response that I got was, ‘You’ll get that information when you get the motion.’“

Rubin states that he researched case law to see if this type of evidence could even be admitted at a preliminary hearing. Rubin could not find a case on point, whether this type of evidence is or is not admissible at a prelim.  Rubin adds that they did not get the 10 court days notice on the motion.

Judge Johnson rules. ‘I am not aware of any authority that precludes the introduction of 1101(b) evidence at a preliminary hearing, so I will permit it.”  The court points out that the admission of this kind of evidence at the prelim is not a binding ruling as to trial, so it’s not a final resolution of the issue for trial. Judge Johnson rules that an adequate showing has been made for some of the proffered evidence for the preliminary hearing. The court then outlines, the specific testimony that will be allowed and what will be excluded.

 The burglary and murder of Tricia Pacaccio, that’s admitted as to identity, common modus operandi and common motive with counts 5, 3, and 1.

The assault with a taser upon Dorothy Hass from December 2001, not charged, exclude the conduct in part as dissimilar. Not the same kind of motive; not the same kind of modus operandi. It appeared to be some kind of disagreement about taking care of animals. Quite different from the charged crimes.   However, admit the defendant’s admission to Dorothy Hass regarding the Ellerin and Pacaccio crimes.

Incident regarding Ashley Green in 2002. Court admits it regarding identity, modus operandi and motive because of similarities with counts 1, 3, and 5.

Conduct attributed to the defendant regarding use of a van that is similar to counts 1, 3, and 5.
The stalking and assault upon Maria Gurrola from 2004, only that portion of the evidence regarding the defendant’s use of a van, the defendant being seen in a white van that was similar to one described in counts 1, 3, and 5. Also admit the evidence of the relationship between the defendant and Maria Gurrola by way of background to explain why the defendant was in the vicinity and why she had an eye on him. Things of the fact that they dated each other, that he asked to marry her, that he followed her, that sort of thing.  The issue of the defendant breaking into her house and Gurrola getting a protective order, that is not similar.

Admissions that the defendant made about knowing forensics, that he knew how to kill people and cover it up, that if Gurrola tried to leave him, he would make it personal, that can come in.  All of that is relevant to counts 1, 3 and 5 as well as the Paccaccio uncharged incident.

Those are the courts tentative rulings. The court offers each side to address his rulings. DDA Miller addresses the 2004 Maria Gurrola, stalking and assault incident. She argues that the defendant, during the Perkin’s Operation, made comments that these women didn’t have protective orders.  Judge Johnson replies, “All right.”

Charles Lindner asks, “Is the court inclined to change its mind?” Judge Johnson replies, “Well, it depends on what you say.”  Lindner then begins to argue that this evidence should not come in at the prelim.

“With respect to the comments allegedly made by the defendant, these were after he was represented by counsel. He was taken to the EL Monte Jail surreptitiously by sheriffs and put in a cell with a couple of deputy sheriffs pretending to be prisoners; did not receive Miranda. There are 5th and 6th amendment issues of serious substance with the conduct of law enforcement on this particular occasion.”

Lindner continues to argue that the defendant’s 5th amendment rights were violated. “I think the court has to hear the constitutional proffer first as to why this should come in, before it comes in at all. We’re very vehement about obeying the constitution. I would ask the court to keep its former ruling.  As far as the defendant being impeached in one of his statements, the defendant isn’t going to be called at this preliminary hearing, so the fact that this woman had a restraining order against him when he said there were no restraining orders against him has no evidentiary weight at all.”

Judge Johnson replies, “All right. Well, the tentative ruling stands; again, excluding the issue concerning Maria Gurrola.” Judge Johnson explains further his ruling on other testimony, stating it’s not really an admission but it’s conduct that he was seen driving a van.  Judge Johnson closes this issue by adding, “That’s the ruling. We’ll proceed on that basis. Is it clear to everyone?”

Then Judge Johnson reiterates his previous statement that these rulings are not binding for trial. “I just don’t see that there’s a sufficient showing at this point of the preliminary." Judge Johnson then asks about the Perkin’s Operation and if there would be such evidence presented. DDA Miller informs the court that there will be, and presents the case law, Illinois v. Perkins, and that it allows for this exact kind of situation.

DDA Miller adds, “While defense claims that it’s a violation of his 5th amendment right. Number one, he had only been arrested at that point on the Santa Monica case. The El Monte case and the LAPD case were not filed until much later on. Almost two months later he was arraigned on other additional charges.” DDA Miller asks the court and counsel to look at Illinois v Perkins, as well as People v. Plyer, which references Massiah in situations like this and how it’s offense specific. DDA Miller adds that the seminal case would be Maine v. Moulton.

The court instructs the prosecution to give the defense a list of witnesses that they expect to call the following day by the end of each day. If there are issues of this kind, like the admissibility of a statement, it should be addressed before the witnesses are called on that day.

Lindner tells the court that he and his co counsel Mr. Rubin, need to make a record regarding confrontation. Confrontation is not a preliminary hearing right. The court ruled on that previously when it denied the defense the ability to find witnesses. The defense has had no opportunity whatsoever to see any of these witnesses to conduct investigations.

Lindner continues, “My fear, and I’m anticipating this, in case this case eventually does reach the U.S. Supreme Court, is that the justices will consider our essentially ineffectual cross-examination at this stage to have supplied the opportunity to cross-examine, when in fact we were not allowed by the people or the ... and because of the court’s ruling, to investigate the very issues on which we have to cross examine.”  Lindner wanted to preserve that issue.

Lindner moves to exclude witnesses from being inside the courtroom. Potential witnesses are excluded.

The first witness is called.

To be continued.....