The state's motion seeking to exclude the testimony of teachers, coaches, friends and family members during the retrial of Erik and Lyle Menendez. The motion was filed Oct. 27, 1994.

LAW OFFICES OF THE PUBLIC DEFENDER
CHARLES GESSLER, Deputy Public Defender, #32144
210 W. Temple Street, 19th Floor
Telephone: (213) 974-2804
TERRI TOWERY, Deputy Public Defender, #94453
210 W. Temple Street, 19th Floor
Los Angeles, CA 90012
Telephone: (213) 974-2929

Attorneys for Defendants JOSEPH LYLE MENENDEZ

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

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,

v.

ERIK GALEN MENENDEZ and
JOSEPH LYLE MENENDEZ,
Defendants.

No. BA068880

NOTICE OF MOTION AND
SUPPLEMENTAL BRIEF
BY DEFENDANT JOSEPH 
LYLE MENENDEZ
FOR ORDER PROHIBITING
PROSECUTION AND
CO-DEFENDANT FROM
ELICITING OR REFERRING
TO ALLEGED OUT-OF-COURT
STATEMENTS BY
CO-DEFENDANT WHICH
INCRIMINATE DEFENDANT

DATE: January 23, 1995
TIME: 9:00 A.M.
PLACE: Department NW N

TO GIL GARCETTI, DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES,
AND/OR HIS REPRESENTATIVE, TO ERIK GALEN MENENDEZ AND HIS COUNSEL OF
RECORD AND TO THE ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that January 23, 1995, or at a future date
convenient to the Court and counsel, at 9:00 a.m. or as soon
thereafter as counsel can be heard in Department Northwest "N"" of the
above-entitled court, defendant Joseph Lyle Menendez ("Lyle Menendez")
will move the Court for an order prohibiting the prosecution and
co-defendant Erik Galen Menendez ("Erik Menendez") and his counsel of
record from eliciting or referring to alleged out-of-court statements
by Erik Menendez which might tend to incriminate Lyle Menendez.  The
motion will be based on the attached memorandum of points and
authorities; the Motion by Defendant Joseph Lyle Menendez for Order
Prohibiting Co-Defendant From Eliciting or Referring to any
Out-Of-Court Statements by Co-Defendant Which Incriminate Defendant
filed December 15, 1994; the People's Supplemental Proffer of Evidence
to be Presented Before a Single Jury (undated) originally scheduled
for hearing June 27, 1994; the People's Supplemental Proffer of
Evidence to be Presented Before a Single Jury dated December 8, 1994;
the Response by Joseph Lyle Menendez to People's Proffer of Evidence
to be Presented Before a Single Jury dated June 13, 1994 and
accompanying Exhibits "1" through "18"; the Response to Prosecution's
Proffer of Evidence to be Presented Before a Single Jury filed by Erik
Galen  Menendez dated June 13, 1994; the Notice of Motion and Motion
for Separate Juries, or, in the Alternative, for Separate Trials, with
Supporting Points and Authorities and Exhibit "A" filed by defendants
Joseph Lyle and Erik Galen Menendez; the transcript of the proceedings
in this case; the pleadings, motions, briefs, records and files
herein; and such other and further evidence and argument as may be
presented by defendant at the hearing on this motion.

Dated this 17th day of January, 1995.

MICHAEL P. JUDGE, PUBLIC DEFENDER
Charles Gessler, Deputy Public Defender
Terri Towery, Deputy Public Defender

By: /s Terri Towery
Terri Towery
Attorneys for Defendant
Joseph Lyle Menendez



MEMORANDUM OF POINT AND AUTHORITIES
I.
INTRODUCTION

As described in the Motion by Defendant Joseph Lyle Menendez for Order
Prohibiting Co-Defendant From Eliciting or Referring to any
Out-Of-Court Statements by Co-Defendant Which Incriminate Defendant
filed  December 15, 1994 ("Motion to Prohibit"), the application of
the Aranda-Bruton rule(1) to the prosecution's previous and pending
proffers of evidence has been the subject of substantial briefing and
argument by the parties.(2)  In the Motion to Prohibit, Lyle Menendez
for the first time formally requested that, in addition to the
prosecution's proposed redactions of proffered statements to comply
with Aranda-Bruton, this Court order co-defendant Erik Menendez to
refrain from eliciting the portions of the alleged out-of-court
statements by Erik Menendez which might tend to incriminate Lyle
Menendez.

In its most recent proffer entitled "People's Supplemental Proffer of
Evidence to be Presented Before a Single Jury" dated December 8, 1994
("Supplemental Proffer"), the prosecution proposes to offer additional
testimony of Craig Cignarelli respecting statements purportedly made
to him by Erik Menendez.(3)  The prosecution further proposes
redaction of all such supplemental statements to delete any reference
to Lyle Menendez.

This brief is to supplement the Motion to Prohibit, and further to
request that this Court preclude the prosecution from eliciting
certain alleged statements by Erik Menendez to Craig Cignarelli which
might prejudice Lyle Menendez in a joint trial.  Specifically, the
prosecution should be precluded from eliciting testimony by Craig
Cignarelli which, by inference, implies that Lyle Menendez killed his
mother.  Similarly, the co-defendant should be prevented from bringing
out testimony on cross-examination which the prosecution could not ask
on direct.  This motion and supplemental brief is intended to present
an illustrative but not exclusive list of examples of such potential
testimony by Mr. Cignarelli.

II.
EXAMPLES OF TESTIMONY THE PROSECUTION SHOULD BE PRECLUDED FROM
ELICITING

Many cases have been cited to this Court in previous briefs regarding
the difficulties encountered in seeking to redact the out-of-court
statements of a defendant which implicate his or her co-defendant. 
See, e.g., People v. Douglas (1991) 234 Cal. App. 3d 273, 285; People
v. Terry (1970) 2 Cal. 3d 362, 284-85; People v. Matola (1968) 259
Cal. App. 2d 686, 692-93; see also, Lee v. Illinois (1986) 476 U.S.
530.  The Supplemental Proffer proposes to introduce the following
redacted testimony by Craig Cignarelli regarding what Erik Menendez
supposedly told him:

"He was unable to shoot his mother and she tried to get away.  After
it looked like his mother was dead, he shot her twice with his gun." 
(Supplemental Proffer, p.3, ll. 3-5.)

The clear inference in this proposed statement is that, after Erik's
mother tried to get away, someone else killed her.  Erik then shot her
after she appeared to be dead.  The "someone else," of course, could
only be Lyle Menendez in the minds of the jury members.  The proposed
redaction thus violates the Aranda-Bruton rule in that the proposed
redaction incriminates the non-declarant.


III.
EXAMPLES OF TESTIMONY THE CO-DEFENDANT SHOULD BE PRECLUDED FROM
ELICITING

The same statement and inference objected to above must not be brought
out by co-defendant.  In her cross-examination of Craig Cignarelli at
the previous trial, counsel for Erik Menendez had the following
colloquy:

Ms. Abramson:  May I have a moment, your Honor?
Q    You first told the story to Detective Zoeller during that
November 17th meeting at Baker's Square, correct?
A    If it was November 17th, yes.
Q    Why don't we -- unless they object, we'll assume it is.  And when
you told him then what Erik had said to you, you told Detective
Zoeller that Erik said that he actually was -- did not shoot his
mother when he walked into the room.  That, although his brother said,
"shoot mom," he couldn't do it.
A    That's right.  He did not say he didn't shoot.
Q    Let's take one line at a time.
A    Okay.  He said he didn't shoot, though.
Q    You told the officers on November 17th that what Erik told you
was:  "Lyle was to shoot my dad, and I was supposed to shoot my
mother."
A    That's correct.
Q    Are you with me so far?
A    Yes.
Q    "We went into the room and Lyle pointed his gun at my dad and
shot him.  He then went over and shot him in the head."
A  That's correct.
Q    "Lyle shot her too?"
A    That's correct.
Q    "After it looked like my mother was dead, I shot her twice with
my gun'?
A     That's correct.  (Reporter's Transcript, p. 7803, l. 3 through
p. 7804, l. 9.)

Obviously the co-defendant cannot be permitted to present this
testimony that the prosecution is precluded from introducing. 
Similarly, the following previous testimony by Mr. Cignarelli
respecting Erik Menendez's statements cannot be pursued by the
co-defendant before a single jury:

The Witness:  He said that he went back outside and his brother was
standing there with two shotguns and said:  'Let's do it.'  And they
walked inside and Lyle was standing -- or Erik went up to the door on
the left, which was slightly open.  And the door on the right, Lyle
went up and put his shoulder against the door on the right.  And Erik
said he looked in, saw his parents sitting on the couch.  And Lyle
sung open the door and shot his father and looked at Erik and said: 
'Shoot mom.'  And Erik said he shot his mom as she was standing up and
yelling."  (Reporter's Transcript, p. 7758, ll.  10-21.)

Another example of testimony which may not be elicited by the
co-defendant is set forth in an affidavit by Detective Zoeller in
support of search warrant number 1542, dated January 24, 1990, which
was obtained in connection with this case.  In that affidavit,
Detective Zoeller states that:

"On November 17, 1989, your affiant interviewed Craig
Cignarelli....Erik stated, 'Lyle and I drove up to the house, opening
the gate and pulled into the driveway.  We unlocked the front door and
walked in.  My parents were in the family room watching television. 
Lyle looked at me and said, 'let's do it!'  We walked outside to the
front of the house and got the guns.  We walked back inside and Lyle
was to shoot my dad and I was supposed to shoot my mother.'

'We went into the room and Lyle pointed his gun at dad and shot him. 
He then went over and shot him in the head.  I was unable to shoot my
mom and she tried to get away.  Lyle shot her too.  After it looked
like my mother was dead, I shot her twice with my gun.'  (Affidavit of
Det. Les Zoeller, p. 3, ll. 7-25.)

Similarly, the co-defendant must not be permitted to inquire into the
following recitation by Detective Zoeller of an alleged statement by
Mr. Cignarelli respecting an alleged statement by Erik Menendez:

"Craig then posed the question, 'What if something were to happen to
Erik in Mexico, would we (the police) be able to find him.'  I/Os
asked what he was referring to.  He said that Erik was scared of Lyle.
 What if Lyle found out that Erik had told of the murder or wanted to
kill Erik for the entire inheritance."  (Beverly Hills Police Report
dated 11/28/89, p. 3 of 3.)



IV.
CONCLUSION

The above examples further illustrate the pitfalls of seeking to
redact the testimony of any witness, and the testimony of Mr.
Cignarelli in particular, in a trial before a single jury.  For all
the reasons set forth herein and in the numerous briefs previously
filed on this issue, defendant Lyle Menendez respectfully requests
that this motion be granted.

Respectfully submitted,

MICHAEL P. JUDGE, PUBLIC DEFENDER
Charles Gessler, Deputy Public Defender
Terri Towery, Deputy Public Defender

By: /s Terri Towery
Terri Towery
Attorneys for Defendant
Joseph Lyle Menendez




PROOF OF SERVICE BY PERSONAL DELIVERY
PEOPLE V. MENENDEZ

I, the undersigned, declare under penalty of perjury, that I am a
citizen of the United States, that I am employed by the Los Angeles
County Public Defender and my office address is as indicated on the
document identified below, that I am over the age of eighteen years,
and that I am not a party to the within entitled action.

I further declare that on the date indicated below I served the
foregoing NOTICE OF MOTION AND SUPPLEMENTAL BRIEF BY DEFENDANT JOSEPH
LYLE MENENDEZ FOR ORDER PROHIBITING PROSECUTION AND CO-DEFENDANT FROM
ELICITING OR REFERRING TO ANY OUT-OF-COURT STATEMENTS BY CO-DEFENDANT
WHICH INCRIMINATE DEFENDANT on the Office of the District Attorney at
the address indicated below:

Office of the District Attorney
ATTN: David P. Conn and Carol Jane Najera
18000 Criminal Courts Building
210 West Temple Street
Los Angeles, CA 90012

DATED:  January 17, 1995

/s Terri Towery
Terri Towery


PROOF OF SERVICE BY MAIL AND FACSIMILE
PEOPLE V. MENENDEZ

I, the undersigned, declare under penalty of perjury, that I am a
citizen of the United States, that I am employed by the Los Angeles
County Public Defender and my office address is as indicated on the
document identified below, that I am over the age of eighteen years,
and that I am not a party to the within entitled action.

I further declare that on the date indicated below the foregoing
NOTICE OF MOTION AND SUPPLEMENTAL BRIEF BY DEFENDANT JOSEPH LYLE
MENENDEZ FOR ORDER PROHIBITING PROSECUTION AND CO-DEFENDANT FROM
ELICITING OR REFERRING TO ANY OUT-OF-COURT STATEMENTS BY CO-DEFENDANT
WHICH INCRIMINATE DEFENDANT was served on those listed below by
facsimile at number (213) 938-9431, and by placing a true copy thereof
in a sealed envelope, first class postage prepaid and addressed as
indicated below, and by depositing the envelope in the United States
Mail at Los Angeles, California, which is within the county in which I
am employed:

Leslie H. Abramson, Esq.
Marcia A. Morrissey, Esq.
4929 Wilshire Boulevard, Suite 940
Los Angeles, CA 90010

DATED:  January 17, 1995

/s Terri Towery
Terri Towery



FOOTNOTES:
1 Bruton v. United States (1968) 391 U.S. 123, 135, 88 S.Ct. 1620;
People v. Aranda (1965) 63 Cal. 2d 518, 530-31.

2 See People's Proffer of Evidence to be Presented Before a Single
Jury (undated) originally scheduled for hearing June 27, 1994;
People's Supplemental Proffer of Evidence to be Presented Before a
Single Jury dated December 8, 1994; Response by Joseph Lyle Menendez
to People's Proffer of Evidence to be Presented Before a Single Jury
dated June 13, 1994 and accompanying Exhibits "1" through "18";
Response to Prosecution's Proffer of Evidence to be Presented Before a
Single Jury filed by Erik Galen Menendez dated June 13, 1994; Notice
of Motion and Motion for Separate Juries, or, in the Alternative, for
Separate Trials, with Supporting Points and Authorities and Exhibit
"A" filed by defendants Joseph Lyle and Erik Galen Menendez; Response
to Prosecution Motion to Admit Evidence (Filed Under Seal), filed
April 20, 1993 by Lyle Menendez, pp. 21-38; Response to Prosecution
Motion to Admit Evidence (Filed Under Seal) filed April 14, 1993 by
Erik Menendez, pp. 3-13.

3 Statements supposedly made by Erik Menendez to Craig Cignarelli
concerning the homicides were proffered in the People's Proffer of
Evidence before a Single Jury (undated) originally scheduled for
hearing June 27, 1994.  As noted in the Response by Joseph Lyle
Menendez to People's Proffer of Evidence to be Presented Before a
Single Jury filed June 13, 1994, the prosecution has failed to
identify the exact redactions it proposes with respect to those
alleged statements, making a specific response to that portion of the
proffer relating to Mr. Cignarelli impossible at this time.