The full text of a motion filed by Lyle Menendez to block the prosecution from introducing evidence at the retrial that he intended an attempt to escape police custody.

LAW OFFICES OF THE PUBLIC DEFENDER
CHARLES GESSLER, Deputy Public Defender, #32144
210 W. Temple Street, 19th Floor
Los Angeles, CA 90012
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 Defendant 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

SUPPLEMENTAL BRIEF BY DEFENDANT JOSEPH LYLE MENENDEZ RE
PEOPLE'S PROFFER OF EVIDENCE TO BE PRESENTED BEFORE
A SINGLE JURY.

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

   Pursuant to the Court's comments at the December 19,
1994 hearing on the People's Proffer of Evidence to be Presented
Before a Single Jury ("Proffer"), defendant Joseph Lyle Menendez
("Lyle Menendez") submits the following supplemental brief
respecting certain pieces of evidence identified in the Proffer
which the prosecution seeks to admit against him.

 Dated this 13th day of January, 1995.

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

   [Signed by Terri Towery]
   Terri Towery
   Attorneys for Defendant
   Joseph Lyle Menendez

 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO
PEOPLE'S PROFFER OF EVIDENCE

 INTRODUCTION

   At the hearings on the prosecution's Proffer on
December 19 and 20, 1994, the Court entertained argument
regarding the admissibility of all items of evidence contained in
the Proffer. At the hearing, the parties were to assume that the
evidence would be offered before a single jury, even though such
determination had not been made by the Court at that time.

   Counsel for Lyle Menendez indicated to the Court
that, because the Proffer was originally presented to assist the
prosecution in its determination as to whether to seek a single
or separate trials for the Menendez brothers, Lyle Menendez had
addressed in writing only those portions of the Proffer dealing
with the issues of cross-admissibility in a single trial. Thus,
items of evidence which were presented before the jury for Lyle
Menendez at the last trial were not addressed in the Response by
Joseph Lyle Menendez to People's Proffer of Evidence to be
Presented Before a Single Jury filed June 13, 1994 ("Response").
The Court indicated that any supplemental arguments which the
parties wished to raise could be submitted in written form.

   The purpose of this memorandum is to amplify the
argument set forth in the Response respecting the so called
"escape plans" seized from the cell of Lyle Menendez in the
summer of 1990, and to reiterate certain objections previously
made with respect to other evidence offered against Lyle
Menendez not briefed in the Response.

THE COURT'S ORIGINAL RULING WAS CORRECT AND THE SO CALLED
"ESCAPE PLANS" SHOULD NOT BE ADMITTED IN THE SECOND TRIAL

   Prior to the first trial of Lyle Menendez, the
prosecution on March 15, 1993 filed a Motion to Admit Evidence.
On April 20, 1993 Lyle Menendez the filed his Response to
Prosecution Motion to Admit Evidence("April 20, 1993 brief").
Both the prosecution and defense documents were filed under
seal. A copy of Lyle Menendez's April 20, 1993 brief (along with
a similar response by Erik Galen Menendez) was lodged with the
Court at the time his Response was filed on June 13, 1994 [FN1].

   At the first trial the Court excluded the so called
"escape plans" from admission before Lyle Menendez's jury [FN2].
However, certain of the arguments made in the April 20, 1993
brief and orally by former counsel for Lyle Menendez were
referred to by the Court at the recent hearing. Specifically,
the Court cited the case of People v. Turner (1990) 50 Cal. 3d
668, 694 n. 10, as potentially supporting the admission of the
so called "escape plans" in the next trial.

   Upon review of the language cited in Turner, it
appears that the Supreme Court did state in dicta:

   "Guilty flight may be relevant not only where the
identity of the perpetrator is at issue, but also where the
accused admits some or all of the charged conduct, merely
disputing its criminal implications. (Citations omitted).
Defendant admitted killing Savage, but the defense and
prosecution differed sharply on the circumstances. The
prosecution theorized that defendant intended to murder and rob
the victim. Defendant claimed an unintentional killing in self
-defense and also denied an intent to steal. Under these
circumstances, the prosecution was entitled to use evidence of
guilty flight to help prove defendant's criminal state of mind."
Id. (Emphasis added).

  The following year, however, the California Supreme Court
had occasion to consider the same question, i.e. the relevance
of the flight instruction in a homicide case where the contested
issue was not identity, but the state of mind of the defendant
at the time of the killing, and took the opposite position. In
People v. Nicolaus (1991) 54 Cal. 3d 551, 579. the Court stated:

  "Like the instruction on false or deliberately misleading
statements, the flight instruction '[does] not address the
defendant's mental state at the time of the offense and [does]
not direct or compel the drawing of impermissible inferences in
regard thereto.'" (Citation omitted). Id. (Emphasis added).

  It was argued previously that, because identity was (and
will be) conceded by Lyle Menendez, the sole issue for the jury
to determine is his mental state at the time of the killings.
Since the most recent proclamation by the Supreme Court is that
flight does not address this issue, the evidence itself has no
relevance in this upcoming trial.

  In addition, even assuming some marginal relevancy, the
evidence should be excluded under Evidence Code 352. Although
labeled the "escape plans In numerous briefs and arguments of
the parties, in fact the documents in question are far from a
realistic "plan." They are not even a single cohesive document.
Some of the pages seem to be simply scribbles of thoughts or
lists. Others perhaps are notes to or about other inmates of
some local notoriety. To the extent the papers do seem to
indicate some type of ruminations of travel from the jail, they
can hardly be described as "plans." The geographical
destinations range from San Diego to Lebanon, from Columbia to
France, and include Canada, London, Mexico, and Belgium. An
"escape" through all of those locations would be challenging, to
say the least.

  Additional pages of the supposed "escape plans" are simply
lists of given names, some of which are the same as those of
some attorneys or witnesses in the case, and have no apparent
connection to the other pages. The danger that the jury will
misconstrue the meaning of. or invent reasons for, the existence
of such names when offered in connection with other pages and
described as a single document is obvious.

   These disorganized and fantastical notes misnomered
as "plans" are, as previously argued, nothing more than
"rumination on the concept of escape." The prosecution has no
evidence that Lyle Menendez actually took 'any steps toward
actually attempting an escape. The complete absence of any actus
reus reduces the pages removed from Lyle's cell merely to
"wishful thinking" at the most. However, references to a
"silencer" and the overall crime of escape could lead a jury to
wrongfully use the documents "bad character" and "other crimes"
evidence. (See Evidence Code 1101). The potential for misuse of
the evidence and prejudice to the defendant far outweighs the
minimal, if any, probative value.

   Finally, the so called "seventeen page letter" seized
from the cell of Erik Menendez at the same time the "escape
plans" were seized makes it clear that such possible thoughts of
escape related not to consciousness of guilt, but to an
overwhelming desire on the part of Lyle Menendez not to reveal
to the world the secrets of his family. He wrote to Erik in the
letter seized less than three months after his arrest:

   "We alone know the truth - we alone know the secrets
of our families (sic) past. I do not look forward to
broadcasting them around the country. I pray that it never has
to happen. If it were not for you I doubt I would even try for
manslaughter. I would rather try and escape or die. I struggle
with my belief that men take responsibility for their actions,
pleading abuse is not taking responsibility...." This
elaboration on the so called "escape plans" makes it clear that
any escape fantasies by Lyle Menendez related to his desire to
avoid the shame of revealing the truth, and not to a
consciousness of guilt or to his mental state at the time of the
killings. The Court's determination that the so called "escape
plans" were inadmissible in the last trial before Lyle
Menendez's jury alone was the correct decision, and such
proffered evidence should again be excluded in the upcoming
trial.

     III.

THE COURT SHOULD REVIEW ITS RULINGS RESPECTING THE
PREVIOUS ADMISSION OF ADDITIONAL EVIDENCE BEFORE THE LYLE
MENENDEZ JURY

  At the December 19, 1994 hearing, the Court also indicated
its view that it was not bound by its prior rulings in this
case, and its potential willingness to reconsider such rulings
in connection with the retrial. In this regard, defendant
requests that the Court reconsider the arguments by Lyle
Menendez in his April 20, 1993 brief, in all additional briefs
filed with the Court, and all oral arguments previously made
respecting the Proffer of evidence respecting the admissibility
of certain testimony by Howard Witkin, Donovan Goodreau, Richard
Wenskowski, Glenn Stevens, Jamie Pisarcik, Brian Anderson, and
Marlene Eisenberg [FN3].

 CONCLUSION

   Defendant Lyle Menendez respectfully requests that the
Court consider this supplemental brief in connection with its
ultimate rulings on the Proffer, and exclude the Proffered
evidence as requested herein.

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

   [Signed by Terri Towery]
   Terri Towery
   Attorneys for Defendant
   Joseph Lyle Menendez

 END NOTES

  1 Again, for the Court's convenience a copy of the April 20,
1993 brief is lodged herewith, and its arguments again
incorporated by reference.

  2 A copy of the written materials the prosecution seeks to
introduce is attached hereto as Exhibit "A." Such exhibit is
identical to Exhibit "P" to the prosecution's Proffer.

  3 All of such arguments and objections are renewed and
incorporated by reference as though fully set forth herein.