MITCHELL, SILBERBERG & KNUPP, LLP
DANIEL M. PETROCELLI (State Bar No. 97802)
EDWARD M. MEDVENE (State Bar No. 32227)
THOMAS P LAMBERT (State Bar No. 50952)
PETER B. GELBLUM (State Bar No. 102695)
11377 West Olympic Boulevard
Los Angeles, California 90064 1683
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
ORENTHAL JAMES SIMPSON, et al.,
FREDRIC GOLDMAN, etc. et al.,
ORENTHAL JAMES SIMPSON, et al.,
LOUIS H. BROWN, etc.,
ORENTHAL JAMES SIMPSON,
Case No. SC 031947
Case No. SC 036340
Case No. SC 036876
MOTION IN LIMINE OF PLAINTIFF FREDRIC GOLDMAN TO EXCLUDE ARGUMENT AND QUESTIONING REGARDING THE BLOOD COLLECTED FROM SIMPSON'S BRONCO ON JUNE 14, 1994 [LAPD EVIDENCE ITEM NUMBERS 23, 24, 25, 29, 30, 31, AND 341 AND ON SEPTEMBER 1, 1994 lLAPD EVIDENCE ITEM NUMBERS 293, 303, 304, AND 3051 BEING PLANTED
[ALTERNATIVE TO GOLDMAN'S MOTION IN LIMINE TO PRECLUDE ARGUMENT AND QUESTIONING REGARDING PLANTING OF EVIDENCE]
Trial Date: September 17, 1996
GOLDMAN MOTION NO. 5
As an alternative to his Motion in Limine to Preclude Argument and Questioning Regarding Planting of Evidence (the "Planting Motion"), which seeks to preclude argument and questioning regarding planting of all evidence in this case, plaintiff Fredric Goldman submits this motion.
By this motion, Goldman asks this Court to enter an Order precluding defendant Orenthal James Simpson from presenting argument or questioning witnesses at trial to support his speculative contention that the blood collected from Simpson's Bronco on June 14, 1994 and September 1, 1994 was planted. On June 14, 1994, an LAPD criminalist collected blood samples from the Bronco, including those designated as LAPD evidence item numbers 23, 24, 25, 29, 30, 31, and 34. Subsequent tests revealed the presence of Simpson's blood, Ron Goldman's blood, and Nicole Brown Simpson's blood. On September 1, 1994, another LAPD criminalist collected additional blood from the Bronco, including LAPD evidence item numbers 293, 303, 304, and 305. Subsequent tests confirmed the results of the earlier tests.
As set forth in the Planting Motion, Simpson will have the burden of proof in this case to establish by a preponderance of the evidence that each particular item of evidence was planted. Evid. Code 606, 660, 664. As also discussed in the Planting Motion' Simpson may not-question witnesses or present argument regarding his planting theory unless he can present both "substantial evidence" that the particular item of evidence was planted and "direct or circumstantial evidence linking" a particular person to the planting of the evidence; evidence showing merely that a third person had a "motive or opportunity" to commit the act is not sufficient. People v. Ponce. 44 Cal. App. 4th 1380, 1389-90 (1996); People v. Kaurish, 52 Cal. 3d 648, 685 (1990).
Simpson's evidence, as revealed by his interrogatory responses, is such that no reasonable jury could find that Simpson has met his burden of proof on this issue. In response to special interrogatories propounded by Goldman inquiring about the basis of Simpson's contentions that the blood samples collected on June 14, 1994 were planted, Simpson said only that the Bronco "was kept in the street for any members of the media or bystanders could have access to it." See Declaration of Daniel M. Petrocelli (filed concurrently herewith) Paragraph 5./1 This is hardly probative of blood being planted in the Bronco. Presumably, no members of the public or media were carrying blood vials around with them containing the blood of Simpson, Ron, and Nicole.
Indeed, three basic, undisputed facts render meritless any possible claim that Simpson's blood was planted in the Bronco. (1) It is undisputed that the only even theoretical source of planted Simpson blood was the blood sample Simpson provided to the LAPD on June 13, 1994. (2) It is undisputed that Detective Phillip Vannatter promptly took possession of the vial containing this blood sample, and, at approximately 5:20 p.m., arrived at Rockingham and gave the vial to criminologist Dennis Fung to be booked. By this time, the Bronco had already been towed away. See Criminal Trial Testimony of Phillip Vannatter 19367:18-19372:4; Criminal Trial Testimony of Dennis Fung 21579:6-21583:9. (3) It is undisputed that there is not a single witness that has testified, could testify, or will testify that any planting of Simpson's blood occurred at the LAPD's Special Investigations Division laboratory, or at any other place where the Bronco blood evidence was examined or tested.
In short, Simpson has no evidence that the Bronco blood collected on June 14, 1994 was planted. Simpson cannot be permitted to unnecessarily prolong the trial,confuse the issues, and mislead the jury with argument that the highly incriminating Bronco blood collected on June 14, 1994, was planted, with evidence of trivial inconsistencies in testimony or on collateral matters, or with evidence that Simpson has refused to disclose to plaintiffs in response to specific interrogatories. Ponce, supra: Evid. Code 352 (court may exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."); Thoren v. Johnson and Washer, 29 Cal. App. 3d 270, 274 (1972) (party may not rely on evidence not disclosed during discovery in response to interrogatories).
In addition, Simpson should be prohibited from arguing that the additional Bronco blood collected on September 1, 1994 was planted. Once again, Simpson has no evidence showing who planted the evidence, how it was planted, when it was planted, or why it was planted. Significantly, the tests conducted on these samples yielded results that paralleled the results of the tests conducted on the evidence removed from the Bronco on June 14, including blood taken from the same locations such as the Bronco's center console.
Simpson's only additional "evidence" that this blood was planted, as disclosed by his interrogatory responses, is that "between June 13 and August 2, when Item No. 293 was collected, the Ford Bronco was kept in an unsecured facility with access by many different people both in law enforcement and out of law enforcement. In fact, the Bronco was examined by William Blasini, Jr. during that period of time (RT 43971,1). Mr. Blasini is specifically trained to look for such things as stains inside a car. He saw no stains consistent with blood." No reasonable jury could conclude that evidence was planted merely because unidentified people had "access" to the car, absent evidence that any of those people actually planted evidence. Kaurish, supra (evidence that a person had motive or opportunity to commit an act is insufficient to prove that person committed the act). Similarly, absent evidence that Blasini actually looked at the places in the Bronco where blood was later found and saw no blood, and that he would have seen the blood if he had looked, his testimony is of no probative value.
Once again, Simpson relies entirely on speculation, conjecture, and unreasonable inferences. He presents no evidence to show who planted the evidence, when it was planted, how it was planted, or why it was planted. In short, because Simpson has no substantial evidence that these samples were planted, argument and questioning regarding any such contention will only unnecessarily consume time, confuse the issues, and mislead the jury. Evid. Code 352.
Dated: August 26,1996
MITCHELL, SILBERBERG & KNUPP
Daniel M. Petrocelli
Attorneys for Plaintiff Fredric Goldman
1. Simpson's interrogatory response also makes the unsupported claim that the Bronco was towed to an unspecified "unsecured facility" prior to the collection of this evidence by Fung, but this claim is supported by no facts and is directly contradicted by the undisputed testimony of tow truck driver Bernie Douroux and criminalist Dennis Fung that the print shed was locked and secured from the time Douroux left the Bronco there to the time Fung unlocked the shed and collected the evidence.