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Appellant's Reply Brief IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE 1 Case No. SO12279 OF CALIFORNIA, 1 (San Diego Superior 1 Court No. 73093175 195) Plaintiff and Respondent, 1 1 DAVID ALLEN LUCAS, 1 1 Defendant and Appellant. ) AUTOMATIC APPEAL FROM THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO HONORABLE LAURA PALMER HAMMES, JUDGE, PRESIDING HONORABLE FRANKLIN B. ORFIELD, MOTIONS JUDGE HONORABLE WILLIAM H. KENNEDY, MOTIONS JUDGE APPELLANT'S REPLY BRIEF THOMAS LUNDY Attorney at Law State Bar No. 57656 2777 Yulupa Avenue, PMB 179 Santa Rosa, CA 95405 Telephone: (707) 538-0175 Attorney for Defendant and Appellant DAVID ALLEN LUCAS Under Appointment by the Supreme Court of California TABLE OF CONTENTS APPELLANT'S REPLY BRIEF SECTION ONE: FACTUAL MISSTATEMENTS IN RESPONDENT'S BRIEF ................ 1 A. Respondent's Argument XXXII: Whether The Photo Of Appellant Was "Significantly Different" From The Other Photos In The Lineup From Which Jodie Santiago Identified Appellant? .................. 1 B. Respondent's Argument XLII: Whether The Impeaching Evidence Against The Santiago Investigating Officers Was "Ambiguous" And Whether Their Testimony Was "Tangential"? ................ 1 1. The Impeaching Evidence Was Not Ambiguous .......... 2 2. Detectives Henderson And Fullmer Were Not "Tangential" Witnesses ............................. 3 C. Respondent's Argument LXXV: Whether Judge Hammes Precluded Voir Dire About Appellant's Prior Rape Conviction? ........... 3 D. Respondent's Argument LXXXV: Whether Judge Hammes Deliberately Persuaded Appellant To Waive His Right To Personal Presence At The Hearing On His Counsels' Ineffectiveness? ..... 4 E. Respondent's Argument CIV: Whether The Bailiff's Secret Intrusion Into The Deliberation Room Revealed Information About The Jurors' Thought Processes And Whether The Jurors Actually Thought They Were Precluded From Looking At The Guilt Phase Exhibit During Penalty Deliberations? ................................... 5 1. Whether The Intrusion Revealed The Jurors' Thought Processes? ....................................... 5 2. Whether The Jurors Actually Thought They Couldn't Look At The Guilt Exhibits? ................................ 6 F. Respondent's Argument CVIII: Whether The Record Contains Discrepancies Which Impeach The ~ccurac~Of The Clerk's Minutes? ............................................. 7 APPELLANT'S REPLY BRIEF SECTION TWO: ARGUMENT I. THE DEFENSE SHOULD NOT BE REQUIRED TO PROVE WHAT DISCOVERY WILL SHOW BEFORE GAINING ACCESS TO THE DISCOVERY [AOB Argument 1.4.1, RB Argument I] ................. 8 JUDGE HAMMES IMPROPERLY DENIED THE DEFENSE MEDIA MOTION WITHOUT WEIGHING THE RISKS [AOB Argument 1.4.2, RB Argument 111 12 IN DISCUSSING CROSS-ADMISSIBILITY RESPONDENT ERRONEOUSLY FAILS TO CONSIDER EACH INCIDENT INDIVIDUALLY [AOB Arguments 2.3.1, 3.8.1 - 3.8.3, 4.7.1 - 4.7.3, 5.2.4.1; RB Argument 1111 ........................................ 13 IV. THE KEY ELEMENTS OF THE DEFENSE CASE-SUCH AS JOHNNY MASSINGALE'S CONFESSION THAT HE COMMITTED THE JACOBS MURDERS-SHOULD HAVE BEEN CONSIDERED BEFORE ALLOWING CONSOLIDATION [AOB Arguments 2.3.5.1, 3.8.5.1, 4.7.5.1, 5.2.6.1; RB Argument IV] ............... 14 THE TRIAL JUDGE ERRONEOUSLY FAILED TO CONSIDER EXPERT TESTIMONY REGARDING THE INABILITY OF JURORS TO HEED LIMITING INSTRUCTIONS IN CROSS-ADMISSIBILITY CASES .................................... 16 VI. THE JUDGE ERRONEOUSLY FAILED TO RULE ON THE CROSS-ADMISSIBILITY OF EACH OFFENSE INDEPENDENTLY [AOB Arguments 2.3.5.3, 3.8.5.3, 4.7.5.3, 5.2.6.3; RB Argument VI] ................................ 17 VII. JUDGE HAMMES'S TENTATIVE PRIOR RULING WAS THE PRODUCT OF IMPROPER BOOTSTRAPPING [AOB Arguments 2.3.5.4, 3.8.5.4, 4.7.5.4, 5.2.6.4; RB ArgumentVII] ............................... 19 VIII. THE PROSECUTION SHOULD NOT BE ALLOWED TO BASE PROSECUTORIAL DECISIONS ON VINDICTIVENESS REGARDLESS OF WHETHER OR NOT SUCH VINDICTIVENESS DIRECTLY EXPOSES THE DEFENDANT TO A GREATER SENTENCE [AOB Arguments 2.3.5.5, 3.8.5.5, 4.7.5.5, 5.2.6.5; RB Argument VIII] ....................................... 20 A. Respondent Impliedly Concedes That The Joinder Motion Was Made In Response To Appellant's Assertion Of His Right To A Speedy Trial ... 20 B. The Prosecution Should Not Be Allowed To Base Any Prosecutorial Decisions On Vindictiveness 2 1 C. Appellant Was Erroneously Denied An Evidentiary Hearing ............................... 22 IX. RESPONDENT MISCHARACTERIZES THE REASONABLE EFFECT OF THE PRETRIAL INSTRUCTION ON CROSS-ADMISSIBILITY [AOB Arguments 2.3.4.1, 3.8.4.1, 4.7.4.1, 5.2.5.1; RB Argument 1x1 ........................................ 24 A. The Preliminary Precautionary Instruction Unduly Emphasized The Other Crimes Evidence ..... 24 B. The Instruction Was Not Neutral ........... 25 C. The Biased Instruction Was Prejudicial And Improper Judicial Comment ............... 25 THE GENERAL CIRCUMSTANTIAL EVIDENCE INSTRUCTION DID NOT CURE THE ERRONEOUS OMISSION OF THE REQUIREMENT OF A FINDING THAT APPELLANT COMMITTED THE OTHER OFFENSES [AOB Arguments 2.3.4.2, 3.8.4.2, 4.7.4.2, 5.2.5.2; RB Argument XI ....................... 27 XI. RESPONDENT MISCONSTRUES THIS COURT'S DECISIONS REGARDING THE "SIGNATURE" REQUIREMENT FOR CROSS-ADMISSIBILITY [AOB Arguments 2.3.4.3,3.8.4.3, 4.7.4.3, 5.2.5.3; RB Argument XI] ........................................ 29 XII. RESPONDENT ERRONEOUSLY DESCRIBES THE OTHER CRIMES INSTRUCTION AS "NEUTRAL" [AOB Arguments 2.3.4.3,3.8.4.4, 4.7.4.4, 5.2.5.4;RB Argument XII] ........................................ 31 XIII. THE OTHER CRIMES INSTRUCTION ERRONEOUSLY FAILED TO REQUIRE JUROR UNANIMITY AS TO THE EXISTENCE OF THE REQUISITE CROSS- OFFENSE SIMILARITY NEEDED AS A PREREQUISITE TO CONSIDERATION OF OTHER CRIMES EVIDENCE ......................... 33 XIV-XXVII. LOVE INSURANCE NOTE CLAIMS: INTRODUCTION ............................ 34 XIV. THE LOVE INSURANCE NOTE WAS INADMISSIBLE AS EVIDENCE BECAUSE THE PROSECUTION LOST A USABLE LATENT FINGERPRINT LIFTED FROM THE NOTE [AOB Argument 2.4.2; RB Argument XIV] ....................................... 36 xv. ADMISSION OF THE PHOTOGRAPH OF THE LOVE INSURANCE NOTE ABSENT AUTHENTICATION WAS ERROR [AOB Argument 2.4.3; RB Argument XV] ....................................... 40 A. Appellant Rebutted The Presumption That The Trial Court Considered The Preliminary Fact Determination In Admitting The Photographs Of The Note ................................. 40 B. The Trial Judge Erred By Failing To Instruct The Jury .................................. 41 C. The Errors Were Not Harmless ............ 41 XVI. RESPONDENT ERRONEOUSLY CONTENDS THAT THE LOVE INSURANCE NOTE WAS NOT OFFERED TO PROVE ITS CONTENT [AOB Argument 2.4.4; RB Argument XVI] .............................. 42 A. The Photos Of The Note Were Offered For Purposes Of Utilizing Their Content ................ 42 B. The Certification Issue Was Not Waived ..... 42 XVII. RESPONDENT ERRONEOUSLY CONTENDS THAT THE "BEST EVIDENCE RULE" DID NOT APPLY TO THE LOVE INSURANCE NOTE [AOB Argument 2.4.5; RB Argument XVII] ...................................... 45 A. Having Erroneously Concluded That The Best Evidence Rule Did Not Apply, The Trial Judge Failed To Exercise Her Discretion As To The Admissibility Of The Photographs Of The Note .................................. 45 B. The Claim Of Error Was Not Forfeited ...... 46 XVIII. JUDGE HAMMES ERRONEOUSLY DENIED THE DEFENSE REQUEST FOR A KELLY HEARING TO CHALLENGE THE RELIABILITY OF EXPERT OPINION TESTIMONY ON HAND PRINTING COMPARISON [AOB Argument 2.5.4; RB Argument XVIII] ..................................... 47 A. Overview.. ............................ 47 B. Evidence Code 4 1418 Does Not Justify Denying A Kelly Hearing On Hand Printing Identification 47 C. The Jurors Were Not Capable Of Assessing The Expert's Reliability ...................... 49 D. Admission Of Harris's Conclusion That Appellant Authored The Love Insurance Note Was Prejudicial ............................. 50 XIX. RESPONDENT ERRONEOUSLY ADOPTS JUDGE HAMMES'S FAULTY ANALYSIS REGARDING THE HANDPRINTING EXPERTS OFFERED BY THE DEFENSE [AOB Argument 2.5.5; RB Argument XIX] ....................................... 52 A. Overview.. ............................ 52 B. Respondent Erroneously Contends That The Defense Experts Were Properly Precluded From Testifying Because They Were Not "Practitioners Or Researchers In The Field'' ................ 53 1. Overview ........................ 53 2. Evidence Code tj 801(b) Permitted The Defense Expert To Rely On The Studies and Research Of Other Experts .......... 54 3. As Empirical Research Experts, The Defense Experts Were Qualified To Identify The Available Literature And Research Relevant To The Reliability And Validity Of Handprinting Identification .......... 56 C. Even If They Were Not Qualified To Testify About Handprinting Identification Globally, The Defense Experts Should Have Been Permitted To Testify About Factors Relevant To The Reliability Of The Specific Prosecution Expert, John Harris ..... 57 D. The Judge Compounded Her Error By Refusing To Allow In-Court Testing Of Harris's Ability To Reliably Identify Handprinting ............. 60 E. Harris's Conclusion Should Have Been Excluded Or, Alternatively, The Defense Expert Should Have Been Permitted To Challenge His Reliability At Trial .................................. 60 F. The Error Was Prejudicial ................ 6 1 XX. EVEN IF THE JUDGE PROPERLY DENIED THE KELLY HEARING AND EXCLUDED THE DEFENSE EXPERTS, SHE ERRONEOUSLY ALLOWED HARRIS TO TESTIFY WITHOUT ANY FOUNDATIONAL
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