Wednesday, April 13, 2011

Phil Spector murder conviction in appeals court

Apr. 12, 2011 5:40 PM ET

LINDA DEUTSCH, AP Special Correspondent

(AP) — A panel of three appellate judges gave lawyers on both sides a hostile reception Tuesday as they argued for and against motions to overturn the second-degree murder conviction of legendary music producer Phil Spector.

With his family and that of slain actress Lana Clarkson in the courtroom, Spector's appellate attorney, Dennis Riordan, insisted that a judge erred when he allowed prosecutors to show jurors a videotape from a hearing held outside the presence of Spector and the jury.

On the tape, Superior Court Judge Larry Paul Fidler was seen interpreting the testimony of a key forensic witness about the position of blood spatter on Clarkson's body, Riordan argued.

Riordan said the judge had taken on the role of a witness.

Associate Justice Richard D. Aldrich and Presiding Justice Joan Dempsey Klein of the California 2nd District Court of Appeal seemed unimpressed with the argument.

Klein said when she was a trial judge, she sometimes interceded to clarify testimony for jurors. "Something that's a mere clarification of evidence — judges do it all the time," said Klein. "...I've done it. It doesn't mean we're testifying."

But Riordan noted that the prosecution used the videotape and a picture of Fidler in their closing argument to validate their position.

The panel, which also included Associate Justice Patti S. Kitching, questioned points made by the state attorney general's office about admissibility of evidence in the case. They quizzed Deputy Attorney General Lawrence Daniels about Fidler's decision to allow the testimony of five women who claimed to have been threatened by Spector in the past.

"If that evidence hadn't come in, do you think you would have gotten a guilty verdict?" asked Klein, who suggested the evidence could be viewed as "highly prejudicial."

Daniels argued it was admissible and not prejudicial, and that coupled with other testimony, it showed that Spector killed the "Barbaraian Queen" star.

The judges have 90 days to issue a written ruling.

Spector was convicted two years ago of shooting to the actress to death at his Alhambra mansion in 2003. He's serving 19 years to life and didn't attend the hearing.

If the appellate court grants Spector a new trial, it would be his third. Spector's first jury deadlocked in the case in 2007; a second jury convicted him in 2009.

Spector's lawyers in both trials contended he did not kill Clarkson and suggested that forensic evidence showed was depressed and shot herself in the mouth. The 71-year-old rock music producer known for his "Wall of Sound" recording technique never testified.

Clarkson's mother, Donna, and another daughter attended the hearing with their attorney. Also in the audience were Spector's wife, Rachelle, and his grown children, Louis and Nicole.

Outside court, Riordan said it was impossible to predict what the court might do and noted that "the tenor of questions shifted" depending on the issues being addressed.

Rachelle Spector said she visits her husband in prison every weekend and that he has been waiting anxiously for the result of his appeal.

"I sincerely hope they take into consideration the evidence and do the right thing," she said.

The justices received some 360 pages of legal briefs and 10,000 pages of transcripts over the past year. They said they had studied the facts of the case closely.

Tuesday, April 12, 2011

The Dainty Criminals Do Not Like Curse Words - They Think They Are At Tea Parties Or Golfing With Their Cronies

Dear My2Cents:

Very thoughtful post. I have three questions:

It seems to me that the holding of Hassoldt is that where identity of the actor is in dispute, 1101 “bad acts” evidence may not be used to show intent, lack of accident or mistake, or motive unless the Ewoldt signature test is met. Therefore, whether the possible actors are 20 or are narrowed down to 2, the underlying principle of Hassoldt would seem to apply.

Regarding your reasoning that:

“The evidence that Phil committed 7 prior assaults with a gun against 5 women under very similar circumstances to Lana's situation - tend to show that it was NOT the result of an "accident or mistake" on Lana's part, and therefore, if that is the case - then Phil killed her.”

It seems clear from the panoply of case authority cited by Spector in support of his position on this point that the showing of “similarity” of the crime charged with the prior 1101 incidents must be supplied INDEPENDENTLY and may not rely on inferences drawn from the 1101 evidence itself.

As such, unless you assume, based on the 1101 evidence, that Spector was the actor and that is motive was to prevent Clarkson from leaving, there is no evidence that Spector’s conduct on the night Lana was killed was similar in any way to any of the 1101 incidents.

Q#1: Therefore, on what “similarities” do you rely and what is the independent evidence (apart from inferences drawn from the bad acts themselves) that Spector engaged in that conduct on the night in question?

Second, I am intrigued that you believe Judge Fidler erred in allowing the jury to hear Vincent Tannazo’s testimony that while escorting Spector from a Christmas party at Joan River’s apartment a decade before Lana Clarkson died Spector said “All women are [C-words] who deserve a bullet in the head.”—and yet you do not believe that this error had any potential to affect the verdict.

I don’t recall the exact count, but my recollection is that there were eight women on the jury. The C-word is extremely inflammatory to most women. They hate the word, and they hate any man who uses it. And coupling that with a prior statement that all women deserve a bullet in the head, in a case where they had to primarily determine whether the man who uttered those words was the one who put a bullet in a woman’s head would seem to have the potential to very much tip the balance toward the prosecution.

Q#2: Why, then, do you not believe that the Tannazo testimony was prejudicial?

Third, it seems undeniable that—given prosecution criminalist Lynn Harold’s change in testimony after she testified in trial #1 that the physical evidence could not exclude suicide to (in trial #2) that the physical evidence excluded suicide as a possibility, as well as Harold’s EXCLUSIVE lynchpin for the flip-flop, her “discovery” that Jamie Lintermoot observed (never documented) blood splatter on the back of Clarkson’s wrists—having the trial judge on video tape explaining with words and actions to his own jury that this is PRECISELY where Lintermoot testified in 2007 that she saw blood splatter on Clarkson’s wrists, had huge potential to sway the jury on this CRUCIAL point concerning the ultimate issue in the case: Suicide vs. homicide.

In addition, it is clear that Judge Fidler’s verbal and nonverbal testimony consisted of "out of court" statements (meaning not made at the trial where they were admitted), that were admitted for the truth of the matter asserted, and that there is no applicable exception to the hearsay rule—since the exceptions proffered by the People only apply to the testimony of “parties” to the case. In other words, the Fidler video was improperly admitted over defense objection.

Moreover, once admitted, the prosecution not only played it to the jury in slow motion to bolster Lynn Harold on the main issue in dispute, it took the extraordinary step of displaying a picture of Judge Fidler on the overhead display to the jury when it was listing the prosecution witness AND when Doron Weinberg objected that the judge was neither a witness for the prosecution or the defense, Judge Fidler OVERRULED that objection in the presence of the jury.

Q#3: Therefore, why don’t you think that the admission of the Fidler video was improper or if you agree it was improper, why do you think that this error did not have the potential to affect the verdict?

I would be very interested to hear your take on these three points.

Once again, thank you for a very analytical post.

Reversal Is Required & Demanded

Conclusion from spector reply brief


In this case, where the scientific evidence raised reasonable doubts as to
defendant’s guilt, other means were advanced to persuade the jury: the unprecedented
use of the trial judge as a witness for the prosecution on a central point in the case; the use of inflammatory evidence of uncharged conduct, much of it decades old, which was
improperly argued as pure propensity evidence; and the castigation of appellant’s counsel
for purportedly having bought expert witnesses to make up “ridiculous testimony” in
order to hide the truth.
“It is too much the habit of prosecuting officers to assume beforehand that a defendant is guilty, and then expect to have the established rules of evidence twisted, and all the features of a fair trial distorted, in order to secure a conviction. If a defendant cannot be fairly convicted, he should not be convicted at all; and to hold otherwise would be to provide ways and means for the conviction of the innocent.”
(People v. Wells (1893) 100 Cal. 459, 465.)

Appellant was not fairly convicted. Reversal is required.

The Prosecution - When You Don't Have A Case Slander Everyone

As appellant stated in his opening brief, he has no quarrel with the proposition that
the prosecution may vigorously argue that compensation to witnesses may color their
credibility. (See AOB, pp. 142-143, citing People v. Parson (2008) 44 Cal.4th 332,
362-363), People v. McGreen (1980) 107 Cal.App.3d 504, 514-519.) The core subject of
the present argument is the prosecution’s claim that appellant’s trial counsel fabricated his defense by hiring expert witnesses to give false testimony.


There is a qualitative difference between arguing about the impact of
compensation on witness credibility and accusing the defense attorney of paying money to experts for “ridiculous” testimony “to hide the truth.” There is no requirement that the words “suborned perjury” must be used to cross the line of misconduct. (See RB 124.) It
is clear enough from the language used that the charge was that counsel was dishonest
and paid enormous sums to buy experts to say anything helpful to the defense, no matter
how ridiculous, all in a campaign to hide the truth from the jury. This is to be contrasted
with what the prosecutor told the jury of the prosecution role: "My job, Ms. Do's job, is
to give you the truth." (RT 9549.) On the other hand, the defense role was characterized
as a series of “parlor tricks”: “Mr. Weinberg doesn’t like the truth.” He just moves it.”
(RT 9550.)

Respondent states such comments are proper when supported by evidence: “The
prosecution also may argue that defense counsel intentionally clouded the facts as long as
there is evidence to support that claim.” (RB 125.) There is not the slightest evidence
Mr. Weinberg did anything to buy experts for shaped, preposterous scientific 26 testimony.
In fact, the most reputable, experienced experts were employed, each of whom had plenty
of scientific basis for their expert opinions. (People v. Bain (1971) 5 Cal.3d 839, 847
[“[t]here is no basis for the claim of fabrication by defense counsel, and the prosecutor's
comment to that effect must be deemed misconduct”].)

Mr. Weinberg did not “go out and buy” these experts as most were hired before
the first trial where they testified. This was long before Mr. Weinberg was on the case.
(See Dr. Di Maio [FT 6178 et seq.]; James Pex [FT 7727 et seq.]; Dr. James [FT 7936 et
seq.]; and Dr. Spitz [FT 8205 et seq].) The second trial was a reason for higher costs for
the experts.

Spector's prosecutorial misconduct argument: attacks on honest of defense counsel

There is an additional ground for reversal raised by Spector on appeal that has not yet been discussed: Prosecutorial misconduct based on prosecutor’s accusing Doron Weinberg of going out and hiring expert witnesses willing to lie for large sums of cash.

These excerpts are from Spector’s reply brief on that subject:

The prosecution’s attack on defense counsel for paying for false testimony was not
simply a criticism of “defense tactics and evidence,” as respondent argues. (RB 116.)
The rule is one of boundaries: evidence-based attacks on witness credibility are permitted, but not baseless accusations that defense counsel is dishonest in procuring witnesses in order to hide the truth from the jury. “Argument may not denigrate the integrity of opposing counsel, but harsh and colorful attacks on the credibility of opposing witnesses are permissible.” (People v. Arias (1996) 13 Cal.4th 92, 162; italics in original; accord People v. Sandoval (1992) 4 Cal. 4th 155, 183-185.) From the prosecutor’s opening final argument, the attack was initiated on defense counsel such that the latter had to address the issue in his own argument: “The prosecution, apparently, thinks that you find me untrustworthy. Apparently, that was the meaning of Ms. Do’s argument yesterday.” (48 RT 9344.)

Respondent argues the aspersions cast on defense counsel for his alleged “machinations of the truth” and similar comments were proper. The term “machination” is defined as “a scheming or crafty action or artful design intended to accomplish some usually evil end.” In context, the word conveyed that appellant’s counsel 24 was a schemer to achieve an evil end, i.e., the suppression of the truth. In fact, they explicitly argued he hired the experts in order to hide the truth from the jury.

Prosecutors may zealously argue their cases and strike hard blows in the process,
but not foul ones. (Berger v. United States (1935) 295 U.S. 78, 88.) Respondent goes
through each of the statements at issue to explain that they in some way responded to defense positions. (See RB 117 et seq.) But it is one thing to point to the evidence to
argue the defense position is unsupported or contradictory, and another to label the
process as counsel’s dishonest scheme to suppress the truth. It is this context that defines
the prosecution argument that counsel paid his experts to say whatever he wanted them to
say no matter how ridiculous in order to keep the truth from the jury.

Respondent defends the prosecution’s argument regarding defense counsel going
“through the machinations of the truth to avoid it, to change it, to move it from here to
here. I mean, this is almost like an inside joke with us because we’ve seen this moved to
here.” (47 RT 9276.) Respondent’s defense of this “inside joke” between the two
prosecutors is that it was not an attempt to smuggle into the case an inference that the
prosecutors had an “inside joke;” i.e., personal beliefs about defense counsel’s
machinations and not an argument based on factual information known only to the
prosecutor. (RB 121.) The rejoinder fails. The comment and the others like it were not mere “arguments that defense counsel called witnesses that gave implausible testimony.”
(RB 123.) They were attacks on counsel’s integrity that he put on 25 phony evidence to
“hide the truth” from the jury.


Prior Bad Acts Evidence & Larry Fidler's Unique Spin

These are all excellent questions that I will try to answer:

1. PRIOR BAD ACTS EVIDENCE. . Regarding the prior bad acts, it is our legal tradition going back to 17th century England that a man may only be tried and punished for what he is charged with doing, and not WHO HE IS as a person, i.e. not based on his character. It is especially not permitted to put on evidence of a person’s character and then argue that he had the PROPENSITY to commit the crime, such as the argument “we know he did it because this is what he does”.

Thus so called character-propensity evidence is disallowed and this prohibition is set forth in California Evidence Code Section 1101.

However, as long as the prior bad acts evidence is not being used for an improper purpose, it may admitted to show the identity or the perpetrator, his intent, lack of mistake or accident, or motive.
But to admit bad acts evidence for any of these purposes, certain judicial safeguards have been enacted that must be found by the trial judge first. The main safeguard is a very factual nexus between the prior bad acts and the crime charged; are they so similar as to suggest that if the defendant committed the prior bad acts he must have committed the charged crime?

The strongest such connection must be made to admit the bad acts to show identity.

In addition, if you want to admit the bad acts to show intent, or the lack of accident or mistake, the identity of the doer cannot be in dispute. Because when you are using bad acts to show some state of mind, you must start with the assumption that the defendant is the doer, and you are simply trying to determine what his mindset was when he did it (was it intentional or an accident).

In this case Judge Fidler found before he settled the jury instructions in Spector2 that the more stringent factual connection between the bad acts and the charged crime (called the “Ewoldt” test, from People vs. Ewoldt”) had NOT been satisfied by the evidence, and therefore the bad acts would not be considered by the jury in the issue of “identify” (who the shooter was).

Where Fidler went wrong is he struck out “identity” from the instruction and inserted words that mean the same thing. He tried to draft around the prohibition, but tripped over it anyway.
As to “intent” or “accident” or “mistake”, because if Spector put the gun in Lana’s mouth it was murder under an implied malice theory, IT DID NOT MATTER whether Spector pulled the trigger ACCIDENTALLY or INTENTIONALLY—it was still an inherently dangerous felonious act likely to result in death, and therefore malice (2nd degree) murder. Therefore, intent and accident were not issues in the case, and the bad acts could not be justified on that basis.

That leaves “motive”.

But the governing appellate case law (the precedent), including that decided by the very division of the court that will decide this appeal, holds that in order to admit the bad acts to show motive, the same stringent “Ewoldt” test required to admit the evidence to show identity must be met. And Judge Fidler HIMSELF found when jury instructions were being decided that the Ewoldt test was not met by the evidence. Therefore, the admission of the bad acts could not be justified to prove motive.

2. EVIDENCE THAT LANA CLARKSON WAS SUICIDAL. This evidence did not come in as “prior bad acts” or character evidence at all. It was admitted under the “state of mind” exception to the hearsay rule for the limited purpose of trying to prove what Lana Clarkson’s state of mind was when that gun went off, in aid of answering the ultimate question in the case: who put the gun in Lana’s mouth, did she or Spector?

3. EVIDENCE THAT SPECTOR SAID THAT ALL WOMEN ARE C-WORDS WHO DESERVE A BULLET IN THEIR HEADS. This is not bad acts or 1101 evidence at all, and right off the bat the court improperly lumped this evidence into the “bad acts” jury instruction, when it should have been instructed on (if admitted at all) with its own stand alone instruction.

But this evidenced was admitted as something called a “generic threat”—a general threat against a specific class of persons (police officers) under specified circumstances (If a police officer ever tries to arrest me, I will kill him instead of going back to prison.)

It is a form of state-of-mind evidence that was admitted to show Spector’s state of mind on the night the gun discharged, by trying to prove he intended to kill Clarkson because she was a woman.
The problem is that the evidence does not qualify as a THREAT at all. To as that all women “disserve” a bullet is not the same thing as saying (for example) if a women ever did X I would put a bullet in her head.

Second, the statement was 10 years ago, in passing, as Spector was being escorted out of a Joan River’s Christmas party. It was too old and too remote in time to shed light on Spector’s tate of mind in 2003.

3. WHY PRIOR CASES MATTER. First, we are not talking about prior TRIAL COURT decisions—those are not precedent. We are talking only about PUBLISHED decision of the courts of appeal (or in the case of Ewoldt, a published decision of the California Supreme Court). Unlike a civil law system (like France, and one state in the United States, Louisiana) where everything legal is governed by codes and statutes, we follow the English common law tradition. We start with some basic common law rules that were created by judges in published appellate opinions, and those rules are refined and develop over time. The legislature can override those common law rules with a statute (as long as the resulting statute does not offend the constitution) or it can incorporate those common law rules into a statute—as it did with California Evidence Code Section 1101.
The published appellate case law in our system is important to give factual context and texture to the bare bones rules to give the law more predictability and to give judges more flexibility.
That is why some people have difficulty in law school.

Unlike many college classes where the professor gives you a body of knowledge to memorize for an exam, law school consists of reading landmark published cases that illustrate some broad principle of the law, and the student must glean the principle that the holding of the cases stands for and then apply that principle to a completely different fact situation than that presented in the published opinion.

So, what do prior decided cases have to do with it? It is within those published opinions that our laws reside.

Lana Clarkson's Self-Inflicted Gun Shot Wound

1. If, as you speculate (because none of us were on the jury) Spector’s out-of-court admission to Adriano de Souza was the reason he was convicted, what does the state have to lose through a retrial excluding evidence of Spector's past bad behavior?

2. Why is it that you believe admitting evidence that Spector told a security guard at a Christmas party 10 years ago that all women deserved a bullet in their heads was properly admitted as a generic threat and that evidence that Spector got drunk and menaced women with guns 30, 20, and ten years before Lana Clarkson's killing were properly admitted notwithstanding the Evidence Code Section 1101 prohibition from presenting character evidence to show a propensity to commit the crime?

As to the decade old statement, how is what women "deserve" a statement of intention to actually shoot all women in the head? If it was not, it was not properly admitted as a “generic threat”.

As to the "bad acts":

First, all doubts about admitting this evidence must be resolved in Spector's favor.

Second, the list of PERMISSIBLE uses of bad acts under 1101 includes:

1. To show identity (who did the shooting); 2. To show intent; 3. to show the lack of accident or mistake; 4. to show motive.

To use bad acts to show identity--who done it--a connection between the aspects of the prior acts and the charged crime must be established without any reliance on the 1101 evidence itself that is so strong it meets the "Ewoldt test". But Judge Fidler ruled the Ewoldt test was not met, and he refused to allow the bad acts to show identity.

But here is the problem: Fidler struck the word "identity" from the instruction and substituted that the bad acts could be used to show that Spector was the person who was holding the gun when it discharged, in other words, different wording but same use--to show "who done it". This is a distinction without a difference. It is still using the bad acts to show identity.

But not so fast you say. The evidence was also admissible under these other theories (2,3 and 4), so the jury properly heard the evidence anyway, right?


Not only was "intent" or "mistake" or "lack of accident" not an issue in case--because the prosecution's second degree murder theory was "implied malice" (once Spector was shown to have put the gun in her mouth, no intent or lack of accident was required AND the admissibility rules do not allow bad acts to be used to show a defendants state of mind at the time of the crime (intent, motive, etc.) unless the fact that the defendant was the shooter is not disputed in the trial.

This is because using bad acts to infer intent REQUIRES AN ASSUMPTION that the defendant is the guy who did it.

Therefore, unless it was agreed by the defense that Spector was the shooter, and the only argument boiled down to Spector's thinking when he did it (e.g., was it intentional or an accident), it was not permitted to use the bad acts to prove issues 2, 3, or 4 UNLESS the stringent "Ewoldt test" was met.

But Judge Fidler MADE A FACTUAL FINDING that the Ewoldt test was NOT met, and issues 2 and 3 were not a factor in the case under implied malice.

Therefore, neither the "what women deserve" comment or the bad acts from 30, 20, and ten years earlier should have been allowed into evidence.

But what about your argument that the jury would have convicted anyway?

This is belied by the facts that the prosecution gave the evidence so much weight in its closing argument. They did not mention it in passing. They compared each victim to the cylinders of a gun, click, click, click, click, click--Lana got the sixth cylinder with the bullet, bang. They argued Spector was a murder waiting to happen. And that Lana's killing was essentially inevitable once she got into that car.

So, can we really say for sure that Spector would have been convicted based on the testimony of de Souza, his suspicious behavior that night, and the forensics--without ANY reference any bad behavior by Spector before the night in question?

The first jury hung.

The second jury deliberated 9 days.

Clearly, both juries thought it was a close case.

Therefore, I am curious to know why you believe that admitting the "bad acts" evidence was not error and why you would be against simply allowing Spector another trial without this evidence--especially if de Souza is enough?

PS: I don't know where the "thumbs down" came from--I did not put it there.
Last edited by S.Pellegrino; 03-18-2011 at 11:07 AM.

This is the California Supreme Court writing in People v. Karis (1968) 46 Cal.3d 612, 672:

“Evidence of a defendant's statement regarding possible future criminal conduct in a hypothetical situation has at least as great a potential for prejudice in suggesting a propensity to commit crime as evidence of other crimes. Therefore, the content of and circumstances in which such statements are made must be carefully examined both in determining whether the statements fall within the state-of-mind exception, as circumstantial evidence that defendant acted in accordance with his stated intent, and in assessing whether the probative value of the evidence outweighs that potential prejudicial effect.

Although once again the specific hearsay exception under which the evidence was admitted was not an issue in the case, People v. Rodriguez (1986) 42 Cal.3d 730, 757, 230 Cal.Rptr. 667, 726 P.2d 113, is instructive with regard to the admissibility of “generic” threats. We stated there: “A defendant's threat against the victim ... is relevant to prove intent in a *637 prosecution for murder. ( People v. Lew (1968) 68 Cal.2d 774, 778, 69 Cal.Rptr. 102, 441 P.2d 942.) The statements here in question did not specify a victim or victims but were aimed at any police officer who would attempt to arrest appellant. Such a generic threat is admissible to show the defendant's homicidal intent where other evidence brings the actual victim within the scope of the threat. [Citations.] Hence the statements were relevant and not excludable under Evidence Code section 1101.”

The same reasoning leads to a conclusion that statements of intent of this nature, reflecting intent to kill a particular category of victims in specific circumstances, fall within the state-of-mind exception to the hearsay rule. (Evid.Code, § 1250.) The evidence is therefore admissible unless the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense."

Several points:

1. The statement by Spector a decade before Lana Clarkson died was not a statement of intent to kill anyone.

2. It did not relate to a specific class of persons under specific circumstances.

3. But the "all women are C-words who deserve a bullet in their heads" comment was highly prejudicial.

Under Division Three precedent, the 1101 evidence was improperly admitted to show motive

That is one point of view that I suspect is not shared by either of the Spectors.

Unitil that day, the appeal and wrongful death case march on:

Excerpt from Spector Reply brief: Under Division Three precedent, the 1101 evidence was improperly admitted to show motive:

“Thus, respondent cites “two types of motive evidence in the area of uncharged
misconduct” — where the uncharged acts cause the charged crime, and where the
uncharged acts arise from the same cause as the charged crime. (RB, at 75.) If that
second type is to be admitted, however, it can only be with recognition of a critical
distinction between the two types of motive evidence in terms of admissibility, as
Division Four recognized in Scheer and Division Seven recognized in Walker. When
Walker upheld the admission of uncharged acts of the second type, that is, those evincing
the same cause as the charged crime, it did so only on the basis of their being contributing
factors under a “common plan or design” theory, finding “sufficiently distinctive”
common features to support an inference that the defendant committed both the
uncharged and charged acts. (139 Cal.App.4th at pp. 804-805.) In other words, when
other offense evidence is being proffered as an intermediate fact to prove an ultimate fact
with a strict standard for admissibility, such as identity or common plan or scheme, the
“motive” evidence must meet that high standard.

That was the holding of this Division in Hassoldt v. Patrick Media Group, Inc.
(2000) 84 Cal. App.4th 153, where the Court held that other offense evidence is
admissible as proof of motive only if the identity of the actor is not in dispute and that, if
that identity is in dispute, the other-offense evidence is admissible only if it meets the
most stringent test for admissibility under an identity theory (a test which the trial court
found that the prosecution could not meet as to Spector). Respondent first attempts to
evade application of this principle by asserting that the instant case “was not one where
the identity of the murderer was unknown; if there was a murderer, it was appellant.”
(RB, at 80.) That attempt is utterly specious. The identity of the person who pulled the
trigger was the material factual dispute in this case, as respondent acknowledges in its
brief. (RB, at 87; see also RB, at 97: “Either appellant shoved the gun in Clarkson’s
mouth, or she did.”) The dispositive admissibility point is “that the identity of the actor is
in dispute” (Hassoldt, supra, 84 Cal.App.4th at p. 166 [emphasis added].)”

Excerpt from Spector Reply Brief re. Tannazzo Testimony

Excerpt from Spector reply brief re Tannazzo testimony.

As appellant has demonstrated, however, his initial statement, as reported by Tannazzo
made a decade before the charged offense and to the effect that all women deserve a
bullet in their heads — fails to pass even this preliminary threshold.

Specifically, a comment, however pointed or angry, about what women do or not
“deserve” is a far cry from a plain statement of intent to harm that can authorize
admission under governing case law. Echoing the trial court’s rationale, the state
responds that there is no requirement that a generic threat be more definite than that
admitted here because the “context and wording unambiguously showed a deep-seated
belief about women” and because questions concerning the statement’s meaning
implicate issues of weight rather than admissibility. (RB, at 99.)
This claim is nonsense. Case law nowhere suggests that evidence of a “deep
seated” animosity towards a victim class — essentially, simple propensity evidence — is
enough to constitute admissible evidence of a generic threat in a homicide prosecution.

To the contrary, each of the cases cited by respondent (and appellant) approving the
admission of “generic threats” has involved a statement(s) that, on its face, involves the
defendant’s direct statement of an intent to harm rather than a remark about what “should
happen” to another, as occurred here. (CITATIONS OMITTED).
Nor do any of the cited cases suggest that, notwithstanding 18 the potential for undue
prejudice arising from purported threat evidence, the question is merely one of“weight” rather than admissibility.

Putting aside its failure to constitute a cognizable “threat” at all, appellant’s initial
statement simply cannot be deemed to reflect an abiding, i.e., non-transient, intent to kill
or harm in light of the substantial amount of time — again, Tannazzo’s shifting account
ultimately settled on roughly a decade — between the statement and the charged offense.
(See AOB, at 119-122.) Recognizing the difficulty presented by this critical condition,
respondent seeks to alter the governing criteria by arguing that lapse of time is merely a
“factor” in determining the duration of the alleged intent under Karis. (RB, at 100-101.)
But Karis does not call for application of a “balancing test” where one “factor,” (here,
time) is weighed against various others to determine an outcome. To the contrary, that
case holds that the remoteness of the threat alone “suggests” impermanence and, with
that suggestion, requires exclusion. (See id., 46 Cal.2d at 637 (evidence of qualifying
generic threat is admissible “unless the circumstances in which the threat was made,
the lapse of time, or other evidence suggests that the state of mind was transitory and
no longer existed at the time of the charged offense. . .”) [emphasis added].)

Furthermore, and of great significance, none of the cases cited by respondent or
located by appellant has approved the admission of “generic threat” evidence after
anything approaching the 10 year period between purported “threat” and offense
appearing here. (See RB, at 98-103.) Having failed to locate any such authority,
respondent seeks to change the subject by invoking decisions in which reviewing courts,
applying section 1101(b), have approved the admission of similar bad acts evidence that
was even more temporally remote. (See RB, at 101, citing People v. Davis (2009) 46
Cal.4th 539, 602 [admitting prior acts as evidence or common scheme or plan and intent
to commit sexual assault] and People v. Steele, 27 Cal.4th 1230, 1245 [admitting
evidence of prior homicide on issue of premeditation as to charged offense].)

The obvious flaw here is that, again, these cases did not involve generic threats at all, but
rather similar acts of misconduct that were proffered and admitted under the different
legal criteria required by section 1101(b), People v. Ewoldt (1994) 7 Cal.4th 380, and
related authority. As the trial court in this case recognized and the state cannot credibly
dispute, in no event could the purported threat described by Tannazzo meet such “similar
acts” criteria.