IMPROPER ADMISSION OR EXCLUSION OF EVIDENCE
The basic prerequisites of admissibility are relevance, materiality, and competence. In general, if evidence is shown to be relevant, material, and competent, and is not barred by an exclusionary rule, it is admissible. Evid. Code § 351; Fed. Rules Evid. 402.
Appellant claims that she was denied her right to a fundamentally fair trial guaranteed by the due process clause due to the fact that the admission of evidence so fatally infected the proceedings as to render them fundamentally unfair.
1101 EVIDENCE CODE
The People’s theory with respect to admissible 1101(b) evidence appears to involves a narrative regarding appellant’s alleged conduct dating to 2005. The People, in establishing the common plan and scheme theory, raised issues relating to evidence involving an email Michelle Rice allegedly received; a young man - Jonathan Maihart - who stopped by Robert Kory’s office in the year 2005; Leonard Cohen’s publicly documented history of drug abuse; and, online posts appellant made while Leonard Cohen was on tour.
Specifiically, prosecutor Streeter in …. Closing … that apellant had a history that included misappropriating monies from Leonard Cohen - based on fraudulent misrepresentations in his retaliatory 2005 lawsuit (perjury, wilful disregard for corporate books and records, misrepresentations re. Appellant‘s personal management commissions) and - alter Cohen heard she was gong to the IRS regarding the allegations that he committed criminal tax fraude -attempted to harass him with respect to a 1099 the IRS requires him to provide her for the year 2004; illegal K-1s tax documents transmitted to the State of Kentucky and IRS for the years 2003-2004-2005; by reporting his probable criminal tax fraud to the Internal Revenue Service in 2005; continued with her attempts to annoy him by advising the District Attorney of Los Angeles that Cohen lies and fabricates stories about Phil Spector; filed a complaint with the DA’s Major Fraud Unit with respect to Cohen’s theft from her (millions), fraud, etc; raised his prior drug abuse as a possible explanation for his abusive, inconceivable, and outrageous conduct towards her; refuted his lies that she had sex with Oliver Stone; addressed his sexual harassment with respect to her - in particular, the fact that he would have her read legal and business documents to him while he bathed in a bubble bath; raised his daughter’s allegations that he molested her - as repeated by Freda Guttman to Ann Diamond; discussed the fact that alleged members of the Aryan Nation (or their relatives) helped her while she was homeless; addressed an incident that envolved a Dallas FBI investigation into a murder, the Aryan Nation, the Cartel, and meth labs; and, evidently further annoyed him with respect to her younger son’s custody matter and her older son’s Whole Foods accident. Add in Bob Dylan and Paul Shaffer. Dennis Riordan.
The prosecutor’s use of appellant’s alleged personal history constituted an impermissible use of evidence to prove character and propensity. California law bars any argument in this case that Lynch has a character or propensity to annoy or harass Leonard Cohen, particularly when these incidents primarily relate to his conduct and not hers. As the prosecutor should have understood, the evidence deemed admissible against Lynch has not been, and could not be, admitted to prove any character trait or propensity on appellant’s part. And yet that it is precisely how it was used.
Closing Argument - Prosecutor Sandra Jo Streeter: The case is not about -- about the unlawful -- whether or not Ms. Lynch was ever charged criminally with stealing from Mr. Cohen, although it does weigh a bit on her credibility issue. All right. (RT 562)
The prosecutor’s misconduct placed appellant in the untenable position of having to accept the prosecutor’s assertions regarding her character and personal history, which, under California evidentiary rules, opened the flood gates to the admission of additional prejudicial evidence. The prejudice to Lynch from the Deputy City Attorney’s misconduct throughout the trial is extraordinary and irremediable which should have resulted in a mistrial.
The trial court ruled that the Deputy City Attorney would be permitted to offer testimony and evidence with respect to incidents that were highly distorted in an atempt to present Ms. Lynch as an individual who intentionally set out to annoy or harass Leoanrd Cohen. In fact, it the Deputy City Attorney attempted to persuade the jurors that Lynch was a disgruntled ex lover who was already in possession of the tax documents she had requested.
On what precise “limited purpose” grounds the evidence was actually admitted - whether to prove Lynch’s motive or character - may never be fully determined, but there can be no doubt as to what this evidence was not admitted to prove. The trial court could not have admitted the evidence to prove that Lynch had a character trait of annoying or harassing people thereby supporting an inference that Ms. Lynch acted in conformity with those traits or propensity with respect to Leonard Cohen. The ban on character evidence under Evidence Code Section 1101 applies in this case, and it is absolute. People v. Alcala 1984 36 Cal.3d 604, 631 (“California’s codification of the common law rule … is absolute where it applies. However probative to common sense, evidence must be excluded under Section 1101(a) if the inference it directly seeks to establish is solely one of propensity to commit crimes in general, or of a particular class.”
Given the remarkable volume of uncharged offense evidence the court has ruled admissible in this case, the barrier between the limited purpose for which the evidence of uncharged acts was admitted and its use as character evidence was clearly not properly maintained. The trial court should have been particularly vigilant to avoid a violation of the structures of 1101 Evidence.
But throughout the trial, and in closing, that is precisely the end to which the prosecutor put the evidence. She did not limit her discussion to whether the past incidents prove Lynch had a common plan or scheme. Sandra Jo Streeter informed the jurors that Lynch had a history of harassing Leonard Cohen and others - such as District Attorney Steven Cooley and Spector prosecutor Alan Jackson who were evidently the latest victims of her so-called personality trait. The prosecutor thus made precisely the propensity/character use of the evidence that is prohibited by California law.
In this case, the prosecutor’s improper use of the uncharged incidents to prove character and propensity could not be clearer. Again, the prosecutor described - through misstatement and distortion of fact and evidence - Lynch’s supposed history of harassment and suggested the present offense was in keeping with the traits that, as her history proves, Lynch possesses. Such use of the 1101(b) and alleged threat evidence is barred by Califoirnia law.
Ms. Streeter’s comments throughout the trial not only amounted to misconduct, they fundamentally altered the landscape of the trial in a way that was exceedingly and unnecessarily prejudicial to the appellant. In order to counter Ms. Streeter’s improper characterization of the uncharged conduct evidence, Lynch would have been forced to offer evidence that she does not harass people. For example, District Attorney Steve Cooley could have testifed that Investigator William Frayeh personally hand delivered a letter Lynch wrote to Spector prosecutor Alan Jackson addressing very serious issues with respect to Phil Spector and Leonard Cohen. Should Lynch have introduced the affirmative character evidence, however, the prosecution may have then claimed that under the law it had the right to rebut Cooley’s testimony with its own negative character evidence proof that otherwise would have no place in this trial.
The prosecution sought to put appellant on trial based on a fictional theory of her life history rather than the evidence concerning the charged crime and its statements throughout this trial were simply a tactic to achieve that end. The prosecución treated Section 1101(b) as a hindrance to be over come and this court must view it as a rule of law to be respected and enforced. The appellant was placed in an entirely untenable position as a result of the City Attorney’s misuse of the prior incidents throughout the trial, and was disadvantaged in a manner that opened the door to extremely prejudicial allegad character evidence. The appropriate remedy at trial was to mistry the case and start over with jurors who had not been tainted by Ms. Streeter’s remarks. In addition, the prosecutor should have been strictly limited to using the Section 1101(b) and alleged threat evidence - in opening and closing argument and throughout the trial - for its proper purpose. For reasons unbeknownst to appellant, her public defenders did not file a Motion for a Mistrial.
In People v. Hernandez (1991) 231 Cal. App. 3d 1376 [283 Cal. Rptr. 81], the court said “In fact, it is difficult to imagine a situation in which an individual could engage in the specific conduct proscribed in subdivisions (a) and (b) and still enjoy constitutional protection.
COMMON PLAN AND SCHEME
Summarize the alleged plan and scheme scam
The evidence of the alleged prior bad acts in this case were introduced to prove intent and the existence of a common plan under Evidence Code Section 1101. Appellant contents the trial court abused its discretion in admitting this evidence because the existence of a common plan is nothing more than a fictional narrative and the evidence was more far more prejudicial than probative under Section 352.
Appellant maintains that: (1) the trial court erred in admitting evidence of the alleged uncharged acts; (2) even if viewed as individually harmless these errors were cumulatively and unduly prejudicial under Evidence Code Section 352; and (3) the allegad prior incidents were so inconceivably dissimilar from the charged offenses that the evidence was inadmissible.
Evidence of prior similar criminal acts is generally inadmissible to prove character or criminal disposition, but it may be offered to establish some other relevant fact such as the existense of a common plan or scheme. Evidence of crimes committed by a defendant other than those charged is inadmissible to prove criminal disposition or poor character. Evid. Code Section 1101, subd. (a). Such evidence is admissible to prove, among other things, the existente of common design or plan or the perpetrator’s intent in the commission of the charged offense. People v. Lenart (2004) 32 Cal.4th 1107, 1123; Evid. Code Section 1101, subd. (b).
Nevertheless, such evidence is admissible “‘only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.’ ” (Lenart, supra, 32 Cal.4th at p. 1123.) Depending on the issue to which the evidence is relevant, a greater or lesser degree of similarity between the charged offense and the uncharged offense is required. The least degree of similarity is required to establish relevance to prove intent. (Ibid.) “To satisfy this theory of relevance, charged and uncharged crimes need only be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance.” (People v. Demetrulias (2006) 39 Cal.4th 1, 15 (Demetrulias), internal quotations and citations omitted; People v. Lewis (2001) 25 Cal.4th 610, 637.)
Even if relevant, “[e]vidence of an uncharged crime may be admitted only if its substantial probative value is not outweighed by a danger of undue prejudice, of confusion of the issues, or of misleading the jury. ‘On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion. A court abuses its discretion when its ruling “falls outside the bounds of reason.” People v. Catlin (2001) 26 Cal.4th 81, 122.
Over defense objections, the trial court concluded that the evidence was substantially more probative than prejudicial. Based on this ruling, the prosecutor introduced testimony that attempted to establish a common plan or scheme. The evidence - which neither established a common plan or scheme nor supported a conviction - was highly prejudicial and hardly probative. The evidence was also prejudicially cumulative. The trial court’s instruction admonishing the jury with respect to this immaterial and irrelevante evidence did not correct its prejudicial effect. It is reasonably probable apellant world have obtained a more favorable result if the evidence had been excluded. Because the error in admitting the prior bad acts evidence was not harmless, the trial court abused its discretion.
A defendant’s not guilty plea puts all the elements of a crime in issue, including intent as evidenced by a common scheme or plan. People v. Ewoldt (1994) 7 Cal.4th 380.
In People v. Ewoldt (1994) 7 Cal.4th 380, 401, the California Supreme Court held that evidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan. The court distinguished between the nature and degree of similarity required in order to establish a common design or plan, as opposed to that required to prove intent or identity. The court found the least degree of similarity between the uncharged act and cargad offense is required to prove intent. (Id. at p. 402.) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant “probably harbored the same intent in each instance.” (Ibid.)
A greater degree of similarity is required to prove existence of a common design or plan. “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Id. at p. 403.) Prior bad acts may be admitted if they demonstrate “circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Ibid.)
Before the trier of fact may consider evidence of an uncharged act pursuant to Evidence Code section 1101, subdivision (b), the prosecution must prove by a preponderance of the evidence that the defendant in fact committed the uncharged act(s) in question. People v.
Carpenter (1997) 15 Cal.4th 312, 382.
Importantly, the California Supreme Court has held that evidence that meets the requirements of Evidence Code section 1101, subdivision (b), must still be subjected to a weighing under Evidence Code section 352 prior to being admitted.
Ewoldt reasoned: “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ People v. Smallwood (1986) 42 Cal.3d 415, 428, 228 Cal.Rptr. 913, 722 P.2d 197; see also People v. Thompson (1988) 45 Cal.3d 86, 109, 246 Cal.Rptr. 245, 753 P.2d 37.) ‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’ People v. Thompson (1980) 27 Cal.3d 303, 318, 165. Although the evidence of defendant’s uncharged criminal conduct in this case is relevant to establish a common design or plan, to be admissible such evidence ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]’ People v. Thompson, supra, 45 Cal.3d at p. 109, 246 Cal.Rptr. 245, 753 P.2d 37.) We thus proceed to examine whether the probative value of the evidence of defendant’s uncharged offenses is ‘substantially outweighed by the probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.)”
The following factors should be considered when determining whether evidence otherwise admissible under Evidence Code section 1101, subdivision (b), should nonetheless be excluded pursuant to Evidence Code section 352: the materiality of the fact to be proved or disproved; the probative value of the other crimes evidence to prove or disprove the facts; the existence of any rule or policy requiring exclusion even if the evidence is relevant; and, the remoteness in time of the uncharged act(s).
On appeal, appellate courts review a trial court’s ruling under Evidence Code section 1101 for abuse of discretion. People v. Roldan (2005) 35 Cal.4th 646, 705.
Appellant claims that her constitutional right to a fundamentally fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment was violated. See Gideon v. Wainwright 372 U.S. 335 (1963). The prior bad act evidence was irrelevant and immaterial to any essential element in the prosecution’s case, and its admission rendered Lynch’s trial fundamentally unfair.
Pursuant to McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1385: Evidence is considered irrelevant if it fails to make any fact of consequence more or less probable. See Fed.R.Evid. 401. Irrelevant evidence may merely be a waste of time, may confuse the jury, or may cause serious prejudice to the defense. The argument regarding relevance in this case is different from that in Estelle v. McGuire 502 U.S. 62 (1991). In Estelle, the Supreme Court found that the “battered child syndrome” evidence was relevant to the intentional nature of the injuries that killed the child, a fact of consequence. The contested evidence in this case can loosely be termed “other acts” evidence. “Other acts” evidence may be relevant to a fact of consequence, or it may be relevant only insofar as it proves the character of the defendant in order to show action in conformity therewith, in which case it is a form of character evidence.
The use of "other acts" evidence as character evidence is not only impermissible under the theory of evidence codified in the California rules of evidence (Cal.Evid.Code § 1101 (West Supp.1993) and the Federal Rules of Evidence (Fed.R.Evid. 404(b)), but is contrary to firmly established principles of Anglo-American jurisprudence. Early American courts retained the rule against using "other acts" evidence as character evidence to show action in conformity therewith. See, e.g., Boyd v. United States, 142 U.S. 450, 458, 12 S.Ct. 292, 295, 35 L.Ed. 1077 (1892) (finding that admission of prior crimes committed by defendants so prejudiced their trial as to require reversal).
As elucidated by the Supreme Court in Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949): Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.
The rule against using character evidence to show behavior in conformance therewith, or propensity, is one historically grounded rule of evidence.
The admitted evidence of “other acts” was irrelevant to a fact of consequence or was solely evidence of character. Under the historic rule against character evidence, such evidence is not relevant to any fact of consequence. No relevant inferences to a fact may be drawn from any particular piece of the prior bad acts evidence which lead only to impermissible inference’s about the appellant’s character.
The prior bad act evidence was indisputably irrelevant to any element of the prosecution’s case, including common plan and scheme, and is irrelevant to any argument that apellan acted willfully or with specific intent. The evidence thus was offered to prove character, give rise to a propensity inference, and did not tend to prove a fact of consequence. This evidence was totally irrelevant and more prejudicial than probative - thus, inadmissible under California evidence law. Its admission was in violation of the historically grounded rule against the use of “other acts” evidence to prove character.
As the U.S. Supreme Court noted in Dowling v. United States, 493 U.S. 342 (1990), when determining whether a due process violation has occurred, courts “are to determine only whether the action complained of … violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community’s sense of fair play and decency.”
Because of the lack of a case against appellant, and the pervasiveness of erroneously admitted evidence throughout the trial it is “highly probable that the error had substantial and injurious effect or influence in determining the jury's verdict.” Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253.
