IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
WORD Version of File: Opening Brief 6th Didt (Word)
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff & Respondent,
Defendant & Appellant
Case No. H028227
(Santa Cruz County Superior Court No. F06858)
8A Cal D 2d-576. Cal.App. 1977. It is the failure to have an appropriate adjudication of a defense that reduces trial to a farce or a sham, and which thus renders Petitioner's trial fundamentally unfair, in violation of constitutional due process rights guaranteed to Petitioner. U.S.C.A.Const. Amends. 6, 14. People v. Rodrigez, 141 Cal.Rptr. 118, 73 C.A.3d 1023.
Cal. 1979. A trial procedure in which the trier of fact can only find against the accused, even if only advisory, is a blatant violation of constitutional standards; all triers of fact must be free to find for or against the party appearing before them. West's Ann.Const. art. 1, Sec. 7(a); art. 6, Sec. 22; U.S.C.A.Const.Amend. 14. In re Perrone C., 603 P.2d 1300, 160 Cal.Rptr. 704, 26, C.3d 49. - 8A Cal D 2d-572
This appeal from a final judgment of conviction that disposes of all the issues between the parties is authorized by Penal Code section 1237.
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Note regarding structure and form of Opening Brief:
Appellant, in Propria Persona, Sui Juris, submits this Opening Brief under duress.
Instead of simply referencing the transcript, transcript has been inserted directly into the Opening Brief. While this makes the brief significantly longer in form, it makes reading the brief substantially more efficient and captures some essence of the sham trial and outrageously biased and out of control Court and Prosecution.
This case can be dismissed based on the simple fact
that evidence denied in trial proves beyond any reasonable level of
doubt that it is impossible for Appellant to be guilty of the charges,
this evidence is summarized in EXECUTIVE SUMMARY STATEMENT OF FACTS
Legal Authorities have been incorporated in a
section titled as such (Page 154
This Santa Cruz Superior Court Case F 06858 is not complicated. Irrefutable evidence proves well beyond any reasonable doubt that it is impossible for Appellant to be guilty of the charges.
Brief Background: March 10, 2003, without probable cause, a Santa Cruz Deputy Sheriff shot at Appellant and his children. To cover up the extreme malpractice, false charges were filed against Appellant: Appellant was also ordered to not communicate with his children for three years; two felonies and nine misdemeanors, all false, were filed against Appellant who is an outstanding member of the local and international community without any criminal record; three times Appellant has been falsely arrested and imprisoned, twice without any right to bail.
In a blatantly sham trial in the Santa Cruz Superior Court, Appellant was found guilty of a VC § 2800.2(a) charge (Driving with a willful wanton disregard to the safety of public and property with the intent to evade). However, a police NETCOM recording of the event which the judge improperly refused to allow into evidence proves the duration of the alleged chase. When the duration is applied to the known distance, the speed of the alleged chase is proven at 27 mph and slower, making it impossible for Appellant to be guilty of the VC § 2800.2(a) charge or any lesser charge or any of the other two dependant false charges Appellant was fraudulently found guilty of: “Child Endangerment!” and Resisting Arrest. Furthermore, there never was any probable cause or reason to chase Appellant in the first place and therefore no underlying charge to make the VC § 2800.2(a) charge valid in the first place.
The purpose of this case continues to be to maliciously prosecute Appellant so as to cover up crimes committed against Appellant and his children and to bankrupt Appellant.
Appellant, submits this Opening Brief under extraordinary duress. The State having appointed Counsel to represent Appellant, and said Counsel having submitted an Opening Brief after the appointed Counsel refused to meet with or discuss the case or her Opening Brief with Appellant despite Appellant having specifically requested such on numerous occasions and having specifically instructed his Counsel to not file any Opening Brief without his preview and approval.
The Opening Brief the State Appointed Counsel filed in Appellant’s name, against Appellants express instruction, totally misstates important facts, ignores an abundance of critical errors by the Court and Prosecution, is completely misleading and has been written according to Appellants Counsel by the Prosecution where Appellants Counsel obtained the false information.
For example, State Counsel ignores the glaring fact that critical evidence which proved Appellant innocent, the NETCOM report and the TRO Appellant filed just before the event, was repeatedly and specifically improperly prevented from coming into evidence by the Court and Prosecution – the NETCOM recording proved Appellant drove a slow speed and could not be guilty of a 2800 charge – The TRO proved that Appellant was the one following the law and had absolutely no reason to evade, eliminating the specific intent necessary for a VC § 2800 charge (While Appellant was doing the right thing going to put his children in their home out of harms way, the Sheriffs neither followed the law nor the most rudimentary ethical process, the sheriffs literally ambushed appellant and shot at appellant and his children, then again assaulted appellant when placing appellant under false arrest).
The State appointed Counsel states that Defense did not use one of all the available preemptory challenges on the juror, Mr. Fu, who said flat out that he would be biased towards the police yet the Court refused to dismiss Mr. Fu for cause, however Defense did use a preemptory challenge against Mr. Fu. State Counsel actually goes as far as sanitizing the State Witnesses testimony, not drawing light to the fact that the key State Witness was caught out with lying blatantly on the stand, which went uncorrected by both the Prosecution and the Court. The state witnesses testimony is so contradictory and convoluted that the Prosecutor uses this fact to try to claim that his key witness’ lie could not be a lie (RT P996 L5).
From a strategic analysis of the State Counsel’s Opening Brief, it would appear that there has been cooperation with Prosecution in an attempt to file an Opening Brief in which the Appellant is found guilty of something, thereby somehow justifying the false arrest in this case or alternatively that the case be remanded for a retrial and thereby continue the malicious prosecution of Appellant. Clearly the State Counsel cooperated with the Santa Cruz Court and Prosecutions consistent delaying of this case. See the letter from the 6th District threatening to take the case from the State Counsel unless she file an opening brief.
This case is not complex and can be quickly and fairly adjudicated due to the irrefutable evidence erroneously excluded by the Court, the NETCOM recording which proves that it is impossible for Appellant to be guilty of the crimes and the TRO with removed specific intent. No such argument was made by the State appointed Counsel and the Court clearly erred in preventing such evidence from coming before the jury, let alone the fact that a Public Prosecutor, who is commissioned to act in the interests of justice, has a duty to bring such evidence forward.
As earlier stated and submitted before the Court, the Opening Brief submitted by the State appointed counsel does not represent Appellant and must be disregarded. From the submission of this Opening Brief by the Appellant, it should be blatantly obvious the extent of the ineffective representation by the State Appointed counsel.
May it also be Judicially Noted that Appellant has been attempting to enforce a lawful Court Order to pay off his wife on his homestead and thus allow Appellant to refinance and raise capital to hire competent counsel, however, the Santa Cruz Superior Court, in insolence to the Constitution of the United States and California and lawful orders, has been preventing such. The Santa Cruz Superior Court in fact went as far as sanctioning Appellant for simply seeking his lawful rights in this regard. Consequentially, Appellant has been prevented though unlawful actions by the Santa Cruz Superior Court, and as a consequence of the duress of ongoing malicious prosecution, from submitting this Opening Brief earlier. Appellant begs the courts patience in this regard and seeks the courts protection and expedient and fair adjudication in this matter.
Appellant would have made this Opening Brief shorter, however, Prosecution and the State Appointed Counsel injected so much unnecessary and false information that it is necessary for Appellant to set the record straight.
Appellant, the Founder, Key Man, Chairman and CEO of a number of National and International corporations has been outrageously and shamefully denied any justice or due process in California’s Courts. The extremely malicious nature of the assault against Appellant has severely impacted Appellant and the corporations Appellant runs. Appellants name has even bee reported to California’s Central Child Abuse Index and Felons Index when Appellant is totally innocent. Some of the customers Appellant in the course of business has provided high level strategic advice to in the banking, business, communications and computer fields are: Sun Micro Systems; Microsoft; Motorola; Sequent Computer Systems; Teknekron Software Systems; Intuit; Boeing; Hitachi Data Systems; General Electric; StorageTek; Bank Of America; Lucent Technologies / Octel; Lockheed Missiles & Space; NCR; Open Software Foundation; US Defense Force U.S. Satellite Command Center in Colorado; TCI; Washington Legislative Commission; Intelsat; IDC; amongst many other banking and fortune 500 clients. The impact of this case and the unlawful actions of agents of the State of California against Appellant is extreme to say the least.
Under the highest laws of the land Appellant is entitled to speedy and fair trial. The California Courts and the Attorney General have totally failed again and again. The California Courts and the Attorney General have a duty to act fairly and expediently. By filing this Opening Brief California Attorney General and California Courts agree to dismiss this ridiculous case, reverse all the charges and exonerate Appellants good name within ten days of the filing of this Opening Brief, should this not occur within ten days as contracted, the State of California agrees to immediately pay out Appellant, Appellants Children and the Corporations Appellant runs for full damages as listed in Appellants Complaint filed in the San Jose United States District Court Case Number C05 00996 JF RS multiplied by at least three times for racketeering and at a rate of 12% interest per month for any delay in payment – this contract does not exclude any other remedies or claims. Time is of the essence. Californian authorities have no excuse to not immediately dismiss this case. Appellant has more than adequately proven his innocence.
On March 10, 2003, without a warrant and without probable cause, from a range of five to seven feet, on Appellant’s private estate, a Santa Cruz Deputy Sheriff shot at Appellant and Appellant’s children. Appellant and his children were returning home from court where Appellant filed a Temporary Restraining Order and Verified Criminal Complaint against his ex-wife in an attempt to stop his ex-wife continuing to make false police calls. The police recording and report indicates that Appellant’s ex-wife had made yet another police call laced with false information, such as her claim that Appellant was a former Elite Forces Militant, heavily armed, had just assaulted her boyfriend, was very dangerous and likely to harm both herself and his own children.
Appellant was in fact following the law and had no reason or any of the necessary intent to evade the police. The sheriffs however, neither followed the law or standard practice. The Sheriffs failed to obtain a warrant and ignored glaring evidence such as:
o The Sheriffs were aware that Appellant was returning home from the Courthouse – obviously Appellant must have been doing something with regard to the law if he was at the Courthouse – Appellant was in fact filing a TRO to prevent his ex-wife from continuing false police calls. Appellant showed the sheriffs the TRO after they shot at him and his children before Appellant was again assaulted by the sheriffs and placed under flase arrest.
o The Sheriffs were aware that Appellant’s ex-wife has a track record of making false police calls and that she was ordered out of the family home on July 12, 2002 for false calls she made to CPS and 911 on July 2 and 9, 2002, respectively.
o The Sheriffs were aware that Appellant is an outstanding member of the community who followed the law and had no criminal record what so ever.
o Only five and a half hours after the children would have been in school the sheriffs literally shot at the father and children, before any formal custody depravation for the mother between 3:00 pm and 6:00 pm. Custody Orders which left open custody between 9:00 am and 3:00 pm, only placing ‘responsibility’ for the children who would normally be at school with the mother.
o The Sheriffs were aware that Appellants children were with Appellant in the car when they shot at Appellant and the children.
o Appellants ex-wife had a stolen million dollar life insurance policy on Appellants life and had threatened Appellants life as reported to the very Sheriffs office who responded to the call -Soquel Sheriffs’ Department Case# 02-06194.
Perhaps it was the tweed jacket Appellant was wearing on March 10, 2003, or Appellants nice family home that triggered the Sheriff Deputy to shoot at Appellant and his children – forgive the sarcasm. The same absurd ignorance and refusal to consider the most obvious facts by Santa Cruz County officials can be found throughout Appellants trial transcript and the case in general. The abuse of Californian authorities against Appellant is extreme and outrageous.
An information filed on March 11, 2003 charged appellant in count I with assault with a deadly weapon on a peace officer with force likely to cause great bodily injury (Pen. Code § 245, subd. (c)) Appellant was accused of bumping two officers with his vehicle, no injuries what so ever and no evidence; in count II with operating a motor vehicle with the intent to evade, flee, or otherwise attempt to elude police (Veh. Code § 2800.2, subd. (a)) however no evidence was put forward for this charge either, other than the one officer stating that he thought Appellant drove around 40 mph in a 25 mph zone, when pressed, the officer also however stated that he had absolutely no idea how fast Appellant drove! (Vol 3 P581 L5); in count III with resisting, delaying or obstructing an officer (Pen. Code § 148, subd. (a)(1)) also no evidence other than Appellant being accused of ‘freezing’ – discovery on the officer who violently assaulted Appellant during the false arrest was also denied by the Court; and in count IV (the most absurd of all the charges considering the Sheriffs literally shot at the children), with child endangerment (Pen. Code § 273a, subd. (b)). (CT 17-19.) Apparently for driving 27mh down Appellants private road with his children in the car, or perhaps, for the fact that the sheriffs shot at the children.
On December 19, 2003 Appellant filed CCP §170.1 Motions to Dismiss Judge Samuel S Stevens who jumped in to adjudicate with bias against the 995 Motions to dismiss the case and a Motion to Dismiss Judge Art Danner who was assigned to preside over the case. SS Stevens is a judge with a long history of bias against Appellant when in 1997 SS Stevens presided over a SLAP suit filed against Appellant. SS Stevens belonged to and his children worked at the same law firm who filed the SLAP suit against Appellant in 1997 (CT 378). Appellant raised the fact that Judge Art Danner was rated as “Not Qualified” by the California Judicial Nominations Committee (only 2 of 678 or so nominees by Governor Wilson received such a rating) and the fact that two Grand Juries mysteriously dissolved after they were formed to indict Art Danner for serious well substantiated criminal charges. Judge Art Danner is in fact according to many reliable and reputable sources a nationally renowned criminal. Instead of following the law, both judges acted as their own judges in cases filed against themselves and simply struck the 170.1 Motions, the judges thereby placed themselves in the precarious position of acting without subject matter jurisdiction throughout the rest of the case, including the trial. Appellant’s counsel refused to assist Appellant in ensuring the laws were followed in this area and the 6th Appellate District Court denied Appellant’s in Propria Persona, Sui Juris Appeal to remove Art Danner as judge (CT 388). Judge Art Danner acted with wanton disregard to the law and with blatant bias throughout the case and trial in sheer insolence to his oath of office and the most rudimentary forms of decency and due process.
On August 19, 2004, appellant’s sham trial began. (CT 501-503.) On August 26, 2004, without any evidence the rigged jury found appellant guilty of count 2 evading an officer (Veh. Code § 2800.2, subd. (a)); count 3 resisting arrest (Pen. Code § 148, subd. (a)(1)); and count 4 child endangerment (Pen. Code § 273a, subd. (b)). However, the jury completely acquitted appellant of count 1, assault with a deadly weapon on a peace officer with force likely to cause great bodily injury (Pen. Code § 245, subd. (c)). (CT 689-690; RT 1335-1136.).
On October 5, 2004, the court sentenced appellant as follows. Appellant received three years of probation with standard terms and conditions including no right to freely travel outside of California. On The Courts instruction the DMV withdrew Appellant’s driving license for one year and the Court has taken Appellants passport indefinitely. Immediately following trial Appellant was remanded into custody, without any right to bail despite Appellant having formally filed his Appeal, to serve 180 days in county jail for count 2, evading a police officer (Veh. Code § 2800.2, subd. (a)). As to counts 3 and 4, the court imposed 6 months county jail time to run consecutive, imposition of sentence suspended. (CT 776-777; RT 2287-2293.) The court acknowledged 44 days of presentence custody credit prior to sentencing as Appellant was remanded into custody without any right to bail prior to sentencing (CT 776-777; RT 2293.).
Appellant filed a timely notice of appeal on September 24, 2004 which the Court ignored. While in custody the Sheriffs refused to duplicate or file any of Appellants motions. On December 3, 2004 Appellant filed a second notice of appeal (CT 778.).
The Santa Cruz Superior Court has consistently delayed and maligned issues in this case so as to maximize the malicious prosecution burden and stress against Appellant.
- Marriage of 19 years destroyed by Appellants ex-wife having affair with Appellant’s Personal Assistant.
- After a failed attempt to rescue the marriage, on June 24, 2002, Appellant and his ex-wife agreed to separate amiably with children remaining in the sole custody of Appellant.
- Sometime in June 2002, Appellant’s ex-wife received a “California Divorce Strategy” which she testified under penalty of perjury, that she received from the Santa Cruz Woman’s Crisis Center, shown below (note all evidence in this brief can be found in the case files):
On July 2 & 9 Appellant’s ex-wife made false calls to CPS & 911 respectively. The sheriffs who made the call were polite and courteous – the shock of having police rush into your home however severely impacts children. After the call Appellant had to take his 6 ½ year old son to the emergency room to be treated for severe stress induced ailments.
- On July 12, 2002 Appellant filed for dissolution of marriage in the Santa Cruz Superior Court and Appellant’s ex-wife was ordered out of the family home & a temporary Custody Order was issued.
- Under professional mediation Appellant and his ex-wife negotiated a Stipulated Custody Agreement that was signed into a res judicata Order on August 13, 2002.
- In professional mediation Appellant and his ex-wife reached a second financial Settlement Agreement on August 15, 2002. The 2nd financial Settlement Agreement was disrupted by Appellant’s ex-wife and her attorney who rushed Appellant into court demanding support (At the time Appellant was paying for all the children’s costs and many of Appellant’s ex-wife’s costs). Appellant was brought before a biased judge, Samuel S. Stevens, who in 1997 supported a SLAP suit filed against Appellant when that judge and the judge’s children belonged to the same law firm that brought the SLAP suit against Appellant in 1997 Santa Cruz Superior Court Case 133216 (CT 251).
- Appellant and his ex-wife again entered into negotiations and reached a third Settlement Agreement with a written Separation Contract on October 14, 2002. Appellant’s ex-wife’s attorney refused to sign that Agreement or to settle.
- Appellant’s ex-wife then refused to further negotiate settlement and started to violate the Stipulated Court Order by exposing the children to her lover, Tichatshcke, causing significant stress on the children. While pointing to Appellant’s children, Appellant’s ex-wife threatened that if Appellant did not give her a better offer he would loose ‘these’, she claimed her attorney knew all the judges and comps and could do “anything”.
- On February 20, 2003, without any legal basis and without giving Appellant proper notice (in violation of Rules 7-103 and 7-108 of the Rules of Professional Conduct of the State Bar of California) and in violation of section § 240 of California’s Family Code, Appellant’s ex-wife called an Ex Parte hearing seven days before a regularly scheduled hearing, to ‘Clarify’ the Stipulated Custody Orders of July 12, 2002 and August 13, 2002. Without any hearing or consideration of the children’s best interest and in blatant violation of the law, a void order was supposedly issued by Judge Kelly who had not heard any matters in the case. The order was never signed by any judge. For purposes of identification, this void ex parte order is referred to as the ‘Void Kelly Order’.
- In blatant violation of the law and the Stipulated Custody Order, the unsigned Void Kelly Order stated that Appellant’s former Personal Assistant and ex-wife’s lover, Steffan Tichatschke, could have contact with Appellant’s children – this caused significant stress on the children, as well documented in the Family Court Case.
- Facts surrounding issues relating to the Void Kelly Order are included herein as these factors directly impact Due Process and the legality of actions by parties on the day and day before the events in this case:
o The July 12, 2002 Custody Order which was issued after Appellant’s ex-wife made false calls to CPS and 911 on July 2 and 9 respectively, was Stipulated and made res judicata by a new Stipulated Custody Order dated August 13, 2002. The July 12, 2002 Order stated amongst other issues:
- 1st Order P3L7: 18. Boyfriend: The children shall have no contact with Steffan Tichatske.
- 1st Order P3L11: 19. Modifications: Parents shall make additions and alterations to custody and visitation only by reaching a written, mutual agreement, signed by both parents.
o The 8/13/2002 Stipulated res judicata Custody Order stated amongst other issues:
- 2nd Order P1L24: All previous orders not changed or amended by this order shall remain in full force and effect.
- 2nd Order P2L11: 4. Modifications to this schedule may be made by mutual written agreement of the parents.
- 2nd Order P2L13: 5. Neither parent shall expose the children to romantic relationships for six months from the signing of this agreement.
- 2nd Order P2L16: 6. Both parents agree to review this stipulation in May, 2003.
The Ex Parte Void Kelly Order is void for multiple reasons:
1. The Void Kelly Order for which there was no hearing was never signed.
2. The Stipulated Custody Orders specifically ordered and contracted that they could only be modified by reaching written mutual agreement signed by both parties (1st Order P3L11: 19. Modifications: and 2nd Order P2L11: 4. Modifications).
3. California Code prohibits the issuance of Ex Parte Custody Orders given without notice or hearing: “Except as provided in Section 6300, an order described in section 240 may not be granted without notice to the respondent unless it appears from facts shown by the affidavit in support of the application for the order, or in the application for the order, that great irreparable injury would result in the applicant before the matter can be heard on notice.”:
California Family Code § 240 Readiness for hearing; continuance; counter-affidavit
(a) when the matter first comes up for hearing, the applicant must be ready to proceed.
(b) If an order described in section 240 has been issued without notice pending the hearing, the applicant must have served on the respondent, at least two days before the hearing, a copy of each of the following:
(1) The order to show cause.
(2) The application and the affidavits and points and authorities in support of the application.
(3) Any other supporting papers filed with the court.
(c) If the applicant fails to comply with subdivisions (a) and (b), the court shall dissolve the order.
4. A judge has no authority to overrule a Stipulated Res Judicata Order. The Custody Orders of July 12 and August 13, 2002 were Stipulated and Res Judicata. California Supreme Court Montenegro v. Diaz filed July 30, 2001: In Montenegro v. Diaz, the California Supreme Court held that a stipulated custody order is a final judicial custody determination: “We hold that a stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule”
5. Motions may be made to set aside an order or issue a new order, however, there is no legal basis to ‘Clarify’ and Order. The Void Kelly Order has no basis at law.
6. Following the Void Kelly Order and the severe impact on his children, not knowing what to do legally, Appellant filed an order to Dismiss Judge Kelly. By so doing, pursuant to CCP § 170, the Void Kelly Order is void “If a judge is disqualified as a matter of law, every order entered by him is as equally void under the new law as it was under the old” Briggs v. Superior Court of Los Angeles County
7. Appellant and his ex-wife were under contract to not enter any legal action outside mediation with Chip Rose without a formal written fifteen day notice.
- The Res Judicta Stipulated Orders of July 12 and August 13, 2002, do not in any way say that Boyfriend Steffan Tichatschke may have contact with the children at any point in time until the parties reach mutual written consent. A review of the stipulation was scheduled for May 2003 – two months after the events in this case. It should be noted that in trial, the Prosecution fraudulently argued that the Stipulated Custody Order allowed Steffan Tichatschke contact with the children six months after the Order was issued, however, clearly the order states no such fact. In fact the Void Kelly Order is Void on it’s face. A Void Order cannot be made lawful. To this very day Steffan Tichatschke and Appellant’s ex-wife are in violation of the Res Judicata Stipulated Order that specifies in a separate specific line item that: [1st Order P3L7] “18. Boyfriend: The children shall have no contact with Steffan Tichatske”.
- After more failed attempts to falsely call the police on Appellant in Santa Cruz following the February 20, 2003 Void Kelly Order, on March 9, 2003 at the Lake Tahoe Homewood Ski Resort, minutes after taking temporary custody of the children, Appellant’s ex-wife abandoned Appellant’s three year old son in the middle of a learner ski run. When Appellant went to rescue his son, Appellant’s ex-wife’s lover, Steffan Tichatschke, skied down, literally waving his arms about to attract attention then embraced Appellant’s ex-wife in a showy kiss in front of the children and Appellant. When Appellant went to pick up his abandoned son, Tichatschke walked up the slope and went for Appellant and tried to start a fight with Appellant. Appellant avoided the conflict and acting in the best interests of his children Appellant removed his children and returned with his children to Santa Cruz where he immediately went to court the next morning on Monday March 10, 2003 to file the TRO and Verified Criminal Complaint against his ex-wife and her lover who had resumed trying to fraudulently employ the state to gain advantage in divorce proceedings.
- Let it be Judicially Noted that Appellant was subject to another sham trial and malicious prosecution in Placer County in relation to this issue and events on March 9, 2003. In that case Placer County Superior Court also refused to allow this critical Void Kelly Order issue to be addressed and refused to allow Appellant’s witnesses to testify or to allow Appellant to put relevant evidence and the law before the jury or allow Appellant to present relevant defense theories. The bottom line regarding the Placer trial where Appellant was fraudulently prosecuted for misdemeanor battery against Steffan Tichatschke, is that while Steffan Tichatshcke initiated an assault against Appellant when Appellant went to rescue his three year old son who had been abandoned in the middle of a learner ski run and the Stipulated Res Judicata Custody Order of July 12, 2002 ordered that Tichatshck have no contact with Appellants children. Tichatschke was and still is in blatant violation of the valid res judicata order. A void order is void on it’s face and can never be valid. The Placer trial was a baseless sham, void and must be reversed.
- On March 10, 2003 Appellant returned home from court at around 2:30 pm with his children where he had just filed the TRO. Appellant passed a number of sheriff and highway patrol cars on the way home. There was an inactive silent parked Sheriffs patrol car at the bottom of Appellant’s private road. On arriving home, Appellant saw a patrol car parked in his driveway and a sheriff well off the side of the road. The Sheriff off the side of the road was holding a large ‘Rambo like’ gun and half hiding behind a bush. Appellant who had previously polite experiences with the sheriffs when his ex-wife made a false police call on July 9, 2002, went to first put his children in the family home out of harms way so that he could come out and talk to the sheriffs out of the presence of the children. The fact the Appellant had to take his oldest son to the emergency room for stress induced by the July 9, 2002 false 911 call also made by Appellants ex-wife, emphasizes the fact that Appellant only acted in the interest of his children, as he should and as in fact the sheriffs them selves advised. Who in their right mind would think that the Santa Cruz Deputy would actually shoot at Appellant and his children?
- Appellant never heard or saw Deputy Pool’s patrol car following him. The entire incident took place on Appellant's private roads and driveway which are windy with many driveways and corners around which children, animals and vehicles can emerge at any time. To drive safely, the road mandates that the driver not take their eyes off the road and corners ahead. As taking ones eyes off the road ahead in this instance is uncommon, it is unreasonable to expect Appellant to have seen any red lamp on a vehicle behind him. Appellant's long-standing hearing problem coupled with Appellant's loud stereo prevented Appellant from hearing the patrol cars siren. Deputy Pool never had his light on when Appellant passed him and Deputy Pool never made any attempt what so ever to stop Appellant or indicate that he intended to make a stop when Appellant passed him.
- Dep. Pool testified in the Preliminary Examination that he took around 20 seconds to look up Appellant's vehicle's registration before following Appellant. In trial, Dep. MacDonald testified that he heard the sirens sound being adjusted, suggesting that by the time Dep. Pool caught up with Appellant, he had already turned his siren down, giving further reason and proof for Appellant to not have been aware that Dep. Pool was following him. Siren sound is strangely absent at times on the NETCOM recording.
- The sheriffs were well off the road and nowhere near Appellant when he drove down his drive. When he arrived home Appellant never saw Sgt. Christey. Appellant carefully drove past the parked patrol car in his driveway and bumped into his opening gage when he looked in his rear view mirror at Deputy MacDonald who was running down the driveway behind Appellant. While waiting for his garage door to open, Deputy Michael MacDonald ran down into Appellant’s drive and without warning shot at Appellant and his children.
- After shooting at Appellant, Appellant screamed at Deputy MacDonald to stop shooting, MacDonald ignored Appellant and took aim for a second shot to finish off Appellant. Sgt. Christey stopped MacDonald from taking the second shot – possibly because she realized they were in the view of neighbors – the ambush positions the sheriffs had taken outside of Appellant’s gate was out of the view of neighbors. Appellant spoke to Sgt. Christey and told her that all he wanted to do was put his children in their home out of harms way and that he had no problem talking to the sheriffs. Sgt. Christey told Appellant that they did not want to arrest Appellant that they just wanted to talk to Appellant and asked Appellant to drive into his garage. The Christey walked in front of Appellant and opened the side door and closed the garage door behind Appellant out of view neighbors.
- In the garage Appellant showed Sgt. Christey the TRO he had just filed along with evidence and pictures of his ex-wife’s divorce strategy. Sgt. Christey asked Appellant to show Deputy Pool the same information which Appellant did. While talking to Deputy Pool, Deputy Brzozowski entered the garage, walked behind Appellant, grabbed appellants right hand and handcuffed it, he then proceeded to crush the handcuff on Appellants wrist with his left hand and drill the knuckles of his right hand into the nape of Appellants neck. Appellant froze and started shouting to his neighbors that he needed witnesses. Deputy Brozozowiski and Deputy Pool then dragged Appellant out of his garage and locked Appellant in the patrol car in Appellants driveway.
- Appellant then witnessed Deputy MacDonald chasing Appellants three year old son, William, across Appellants garden. The Sheriffs came to Appellant and told him that William had wet his pants, and that they wanted the keys to Appellants house so that they could go and get William dry pants. Appellant never gave the sheriffs the keys to his home. The sheriffs proceeded to search for video surveillance equipment in Appellants driveway and Appellant was taken to the Santa Cruz Jail.
- To cover up the attempt on Appellant’s life and the fact that the Deputy shot directly at the children, Santa Cruz authorities maliciously prosecuted Appellant:
o Appellant was ordered to not communicate with his children for three years.
o A total of two false felonies and nine false misdemeanors in six cases were filed against Appellant, eliminating Appellants companies or Appellants ability to work.
o Appellant was thrown in jail three times for a total of five months, once with bail set at 15 times the schedule the other two times without any right to bail.
o Repeatedly at hearings where Appellant presented irrefutable proof of his innocence the Santa Cruz Court ignored the facts and even went as far as repeatedly sanctioning Appellant for seeking his rights.
o Appellant was given sham trials including this trial where submission of all relevant evidence proving Appellants innocence was denied; the opposing parties were allowed to submit known lies and hearsay; and Appellant was not allowed to argue any effective theories of defense or law and his testimony was literally struck from the record.
o Appellant’s passport and drivers’ license were taken from him.
- In regard to this case, when Federal Court issues an Order to Show Cause as to what evidence exists against Appellant, the Santa Cruz District Attorney and Sheriffs simply refuse to respond other than with a “Notice of Non-Interest”.
- The Santa Cruz Superior Court refused to issue any Order To Show Cause as to what evidence exists against Appellant and the court refused to consider the facts that proved well beyond any reasonable doubt that Appellant is not guilty.
- To eliminate him as a witness, without his fathers’ knowledge or permission, one month after ordering Appellant not communicate with his children, in cooperation with Appellant’s ex-wife, the Santa Cruz District Attorney and Sheriffs interrogated Richard, aged seven. During the interrogation, Richard is heard saying he forgot what to say.
- In his Crime Report, Deputy MacDonald stated that the reason he shot at Appellant and his children, was because he feared that if Appellant entered his home it would “lead to a homicide of the children and a suicide by Clive”. Perhaps it was the tweed jacket Appellant was wearing that initiated this reasoning by the Deputy, or maybe it was the good standing and totally crimeless past of Appellant, or perhaps it was the nice home and vehicle that Appellant was driving. Forgive the sarcasms, however, Deputy Michel MacDonald literally ran up to the window of Appellants vehicle and from a range of five to seven feet tried to blow Appellant’s head off. William, aged three, was directly behind Appellant in the direct line of fire, Richard, aged seven, was two feet off the Deputies fire.
- The Police Report reveals more evidence. According to Deputy Mary McConnell, Appellant’s ex-wife and her lover called the police and setup them up. In the 911 call on March 10, 2003, Appellant’s ex-wife stated that Appellant belonged to the “South African military elite forces”, a lie, and that Appellant and had 5-6 firearms in his home that Appellant was likely to “hurt she and the boys”, also a lie. Perhaps the more likely reason the Deputy tried to murder Appellant in front of his children was the fact that the sheriffs were aware of an illicit one million dollar life insurance policy Appellant’s ex-wife had and still has on Appellant’s life. The sheriffs were also aware of Appellant’s ex-wife’s earlier false 911 calls.
- This is a case about an attempted hit-job by Santa Cruz Sheriffs and the California Court System doing everything it can to cover up crimes committed against Appellant and his children.
Appellant testified in his own defense. During his testimony, appellant stated that he did not receive any cell phone messages because the battery in his phone was dead after driving back from Lake Tahoe the previous day (RT 1040). Appellant was prevented by the Court from testifying that he had spent all morning and early afternoon filing a TRO which directly related to the events of this case. The TRO Appellant filed was not allowed into evidence.
On returning home from the courthouse Appellant passed many police vehicles including a stationary parked patrol car on the side of Hidden Valley road. The patrol car had no lights on and no officer was visible and no attempt was made to stop Appellant as he approached and passed the patrol car. At least 20 seconds after Appellant passed the parked patrol car, according to Deputy Pool, Deputy Pool followed Appellant. Appellant was not aware that Deputy Pool was following him as one typically does not watch your rear view mirror when driving along your own windy private road (RT 1042-1052, 1089, 1095-1098). Appellant did not hear Pool’s patrol car siren because he had the SUV’s radio turned up loudly as the radio station was playing his son’s favorite song and Appellant has hearing problems (RT 1052, 1096-1098.)
Once at his house, Appellant noticed a police car parked in front of his gate (RT 1053-1055, 1100.), he also saw Deputy MacDonald well off the side of the road holding a large gun. Deputy MacDonald was standing behind a bush near Appellant’s neighbors pump.
Appellant went to put his children in the family home out of harms way and out of a stressful environment, so that he could come out and talk to the Sheriffs alone and show them the Temporary Restraining Order and Verified Criminal Compliant Appellant had just filed (RT 1055-1058, 1101-1108.) – the Court however ruled this information inadmissible. Appellant drove through the gate and down the driveway as carefully as possible. (RT 1058-1060, 1107.)
While waiting for the garage door to open, MacDonald rand down into Appellants driveway and shot at appellant’s head without warning (RT 1060-1061, 1114-1115.). Appellant yelled for MacDonald to stop shooting and that he was just trying to put the kids into the house (RT 1060-1062.). MacDonald was going to shoot at Appellant again, however Christey stopped MacDonald from taking a second shot. This was the first time Appellant saw Sergeant Christey. Christey ordered Appellant to drive his SUV into the garage where Appellant spoke for some time to Christey, showing Christey the TRO and Verified Criminal Complaint he had just filed – The Court struck Appellants testimony in this regard. (RT 1060, 1063-1064, 1101, 1118-1121.) Appellant later spoke to Deputy Pool in the garage regarding the same information which he had given Christey. (RT 1065.). While talking to Deputy Pool, Appellant was violently assaulted by Deputy Brzozowski while being placed under arrest, however, the Court also struck this testimony from the record, the Court also denied any Pitches Motion Discovery on Brozozwski (RT 10665).
Defense was prevented from putting the NETCOM recording of the alleged chase into evidence by the Court. The NETCOM recording, a government document, proved the duration of the alleged chase and proves Appellant drove a slow 27 mph.
On March 10, 2003, appellant’s ex-wife, Anamaria, reported to Santa Cruz County Sheriff’s Department that appellant had failed to transfer custody of their two sons to her. (RT 301-302.) The custody agreement stated that Anamaria was ‘responsible’ for the boys from 9 a.m. until 6 p.m. on weekdays and as agreed on weekends. (RT 308-310, 382-384.) Anamaria told Deputy McConnell that appellant had failed to return the boys to her that morning and she was concerned because her older son was not in school. (RT 303-304.)
Prosecution stated there had been an altercation the previous day involved Anamaria’s boyfriend, Appellants former Personal Assistant, Steffan Tichatschke (The Prosecution called Anamaria’s boyfriend her ‘current fiancé’ and appellant’s former ‘business partner’. At the time Anamaria was still legally married to Appellant). Appellant was to take the boys for part of the weekend to a ski resort at Lake Tahoe to celebrate his older son’s birthday. Anamaria and her boyfriend drove up to the ski resort separately and she was to have the boys on Sunday during the day. (RT 304, 402.) Prosecution falsely claimed that Appellant handed the boys to Anamaria at 9 a.m. on Sunday morning. Prosecution failed to state that appellant saw the youngest boy abandoned in the middle of a learner ski run and went to rescue his son. Prosecution stated that Appellant went to get in an altercation with Anamaria’s ‘fiancé’. (RT 305, 386.) Prosecution indicated that Appellant believed that this contact between his young son and the boyfriend violated a current court order, which it clearly does. Specifically, the August 13, 2002 court order required that the boyfriend not have contact with both boys – The Prosecution deceptively argued that a separate line item relating to romantic relationships in the Stipulated Custody Court Order, was specifically related to Tichatschke, which it was not. Prosecution deceptively argued that Tichatschke had a right to contact Appellants children (RT 310, 384, 389-390, 403.) Defense was prevented from arguing any issues regarding this matter.
Prosecution fraudulently claimed that Appellant confronted the boyfriend and the altercation became physical and that Appellant punched the boyfriend in the face. (RT 305.) Appellant took both boys with him and left the ski resort. (RT 307.) Anamaria and her boyfriend reported the incident to the Placer County Sheriff’s Department. (Ibid.)
Based on information provided by Appellants ex-wife and information gleaned from other court and police reports, Deputy Mary McConnell spoke to Sergeant Amy Christey. (RT 310-311, 328-330, 367, 388, 392-393, 409-411.) Sergeant Christey told McConnell to contact appellant to get his version of events. But if they had not heard anything from appellant by the end of the day, they had already begun researching what charges they could file against Appellant for what the Sheriffs assumed was a violation of a court order by Appellant. (RT 311, 411, 512.) McConnell called appellant’s cell and home phone numbers and left a message for him at around 11:30 a.m. She identified herself, discussed Anamaria’s report, and told him the reason for her call. She asked appellant to call her back so she could get his side of the story. (RT 312-313.) By 1 p.m., appellant still had not returned McConnell’s call. (RT 313, 411.)
At about 2:25 p.m., Sergeant Christey decided to go to appellant’s home to check on the whereabouts of appellant and the children. (RT 411-415.) Christey wore her sheriff’s uniform and parked her patrol car in front of appellant’s residence. (RT 409, 412, 415.) Christey called McConnell at the sheriff’s substation and told McConnell that she was at appellant’s home. (RT 315, 412.) There was a gate and fence across the front of appellant’s property on Suncrest Drive. Christey stepped over the fence, walked up the driveway, and to the front door (Prosecution failed to address the fact that Christey failed to obtain a warrant and that if Christey had followed the law the Sheriffs would have learned that Appellant was at the Courthouse following the law). (RT 415-416, 511.) Since the front door was made of glass, Christey could see snow clothing which belonged to one adult and two children inside which she concluded that the children had returned home. She rang the doorbell. (RT 416.)
At this point, McConnell again called appellant’s home telephone number in an effort to speak with him. (RT 315.) A male by the name of “J.R.” answered the phone and said that he had to hang up because Christey was at the front door. She identified herself and told him the reason for her call. (RT 315-317.) McConnell told J.R. why Christey was at the front door and that he should go and speak with her. McConnell then radioed to Christey that the individual in the house was named J.R. (RT 317.)
J.R. went to the front door, and after learning that Christey had not warrant refused to open the door for Christey. Christey described J.R. as a heavy-set white male, whereas appellant was described as a tall thin man. (RT 421, 425.) J.R. told her that appellant was not home, but did not say anything about the two children. Christey warned J.R. that if he hindered their investigation, she would arrest him. But J.R. just walked away from the front door. (RT 422-423.) The deputies tried to contact J.R. several other times. (RT 424.) For example, once Deputy Mike MacDonald arrived, he tried speaking to J.R., but was unsuccessful. (RT 426-428, 832-834.)
After this encounter, McConnell again called J.R. and asked for appellant. J.R. told McConnell that he was not appellant and that they should get a warrant. He then hung up the phone. (RT 318-319, 332.) Christey asked McConnell to get a physical description of appellant. (RT 425.) McConnell looked at appellant’s DMV records and called Anamaria to ask for appellant’s description. Anamaria told McConnell that she had just seen appellant leaving the Santa Cruz County Courthouse. She saw appellant in his car and she ran toward the car as he was backing up. She saw that he was wearing a tan or khaki colored shirt, but she could not see if the children were in the car. Appellant drove a silver 2001 Mitsubishi Montero. (RT 321, 428.)
Since Deputy Pool was on route to appellant’s house, McConnell radioed him the description and license plate number for appellant’s car. (RT 321, 429, 580-581.) Sergeant Christey instructed Deputy Pool to stop on the road before appellant arrived at his house, Christey also gave Pool other instructions over a cell phone which were not recorded.
Deputy Pool drove a marked patrol car. (RT 575.) He parked on Hidden Valley Road past Muir Road and waited for appellant’s car to appear. (RT 429, 576-577.) Pool’s patrol car had neither lights nor siren on when appellant’s SUV drive up Hidden Valley Road from North Rodeo Gulch and Pool made no effort what so ever to stop or indicate to Appellant when Appellant dove past that he wished to stop and question Appellant (RT 582.).
Pool stated that he had no idea what speed Appellant drove at (RT 581.).
After appellant past Pool, Pool checked Appellants registration number and then according to Pool 20 seconds later followed behind appellant’s SUV (RT 582.) Pool later turned on his overhead lights and stayed behind the car. When appellant failed to acknowledge, Pool turned on his siren, however appellant again failed to acknowledge (RT 583-586, 764-768.).
In his testimony Pool made various contradictory claims as to Appellant speed ranging from Pool stating that he had no idea what speed Appellant traveled at (RT 581 L7) this fact was also confirmed by the Court, to an alleged constant 40 miles per hour (RT 589 L10) to an alleged variable speed (RT 775 L18). At no time in the Prosecutions case did Pool or any of the other State Witnesses testified that Appellant drove with a willful wanton disregard to the safety of public and property as required by the VC § 2800 charge. Other state witnesses stated that when Appellant drove past them, the speed Appellant was driving was a ‘roll’ (RT 783 L8; RT 593 L15).
The Prosecutions key and only witness to the VC § 2800 charge, Deputy Pool, was later caught out in another blatant lie when on the stand Pool claimed to have never discussed his testimony with the Prosecutor or other officers (RT P772 L16- P774 L26). When challenged regarding the State Witness’ lies (RT P963 L1-P964 L9), the Prosecutor deceptively claimed that he never met with all the state witnesses and that proof of this was that the State Witness’s testimony was so convoluted and contradictory that it showed they could not have planned things together (RT P996 L5). MacDonald confirmed meeting with Prosecution (RT 885 L25) and with other officers (RT 886 L3-19). Pool later confirms his and the Prosecutions lies in claiming to have never discussed testimony regarding the case when asked why he went to re-measure the distance of he alleged chase, Pool responded that the Prosecutor, Drottar, instructed him to do so (RT P778 L6). When Defense raised the fact of the lie, the Court refused to admonish the State witness or the Prosecution (RT P995 L20).
Prosecution went to the expense of ordering and paying for aerial photographs and video of Appellants property, sent detectives and sheriffs repeatedly out to Appellants road and property and at one time even went as far as to get Appellants alarm company trigger the Alarm in Appellants home so that the Sheriffs could conduct an unwarranted search of Appellants home.
Deputy Pool radioed Christey that appellant failed to yield, she and MacDonald returned to the street in front of appellant’s gate. Christey took her gun out of the holster and pointed it down at the ground. She hid behind a van about 50+ feet from the gate. (RT 430-433, 591-592.) MacDonald contradicted the location of where he stood at one point he state that he was ‘out of the driveway’ (RT 539 L26), at another time he stated that he was ‘right behind the van somewhat by the driveway’ (RT 840 L19), then ‘behind the van’ (RT 843 L6), then ‘crossed over the driveway here so I was located closer to my patrol car’ (RT 856 L1).
When Appellant approached his home, MacDonald claimed to have a long conversation with Appellant relating to property rights, the Prosecutor initially asked MacDonald about this and at first MacDonald admitted that Appellants window was rolled up (RT 856 L26; RT 857 L23). Later in his testimony, MacDonald claimed to have two conversation with Appellant during the time he said Appellant drove off the road to get past a patrol car while MacDonald ran behind the vehicle and the vehicles window was “window up here once when he passed me and again here when he passed me” (RT 867 L8; L22).
As MacDonald claims change illogically throughout his testimony (RT 856 – 937), it is far too confusing, from a documentary perspective, to describe the Prosecutions case from the officers testimonies. . For example, MacDonald stated that Appellant made an abrupt left turn (in a straight driveway) and that Appellant struck both sides of MacDonald simultaneously with the left front quarter panel of Appellants vehicle “he had the left front quarter panel and bumper of his vehicle ran into both my right thigh, right shin, left thigh and left shin” (RT 861 L15). In his testimony, MacDonald amazingly superimposes himself from the back of the vehicle to the front of the vehicle (RT 863 L22; RT 863 L13) and claimed to place himself between the vehicle and the gate after the vehicle had bumped into the gate (RT 864 L23; RT 866 L5). MacDonald claimed that his pants were torn as a result of being struck on both sides by Appellant’s vehicle. However, when asked if he had taken pictures of his pants, MacDonald claimed that he had run out of photographic film and that he failed to turn in his pants as evidence and that he had now lost his pants (RT P917 L9). MacDonald took pictures of many other incidentals (RT 877 – 881)
Christey noticed that the two boys were in the car with appellant. So, she re-holstered her gun and told the other deputies about the children in the car. (RT 436-438, 854.)
Deputy Pool followed the SUV in his patrol car up to the patrol car parked in Appellants driveway. He parked his patrol car behind one of the patrol cars, got out, and followed the SUV up the driveway on foot. (RT 592-593, 595-596.)
Once appellant moved through the gate entrance, Christey claimed she walked along side the SUV and briefly became been pinned between the car and the white picket fence (however, the white picket fence is only on the other side (the house side) of the gate) (RT 441-444, 562, 597, 785-786, 804, 865-866.). Christey stated that there was no physical evidence what so ever regarding her claims of being ‘pinned’ by appellants vehicle (RT P562 L26). In the preliminary examination Christey stated that she might have ran into the back of Appellants vehicle (RT P564 L10), in trial she denied this and the Court prevented Appellants Counsel from showing the disparity in Christey’s testimony to the jury (RT P563 L4 – P564 L22).
Christey then circled around the back of the SUV and followed it ‘up’ the driveway on the rear driver’s side, behind MacDonald. (RT 445.)
MacDonald rand down behind Appellant and shot at Appellant from a range of only 5 to 7 feet (RT 901.) MacDonald admitted that he aimed the less-lethal-weapon at an area of appellant’s body which could have proven fatal (RT 888.).
When asked why he fired his weapon at Appellant and the children, MacDonald stated “my fear was that the two children were still located in the back seat of the car. We had not been able to confirm their welfare or what their situation was” so he shot at Appellant and the children (RT 871 L23) (We suppose MacDonald concluded that if he shot the children he would know what the welfare of the children would be, they would be dead). MacDonald stated that he felt that “if he [Appellant] was able to make it into the garage and shut the garage door, that this may create a hostage situation and we would be trying to negotiate for the children's safety”, however MacDonald never stated on what information or how he came up with this imaginary situation, the court by that time in the trial strongly insisting on no speaking objections such as hearsay, other than of course Prosecutions objections to ‘speaking objections’ (RT 871 L26).
Christey stopped MacDonald from taking a second shot at Appellant (RT P872 L23). Christey then entered the garage alone with Appellant to speak to Appellant, the garage door was closed behind Appellant and Appellant discussed the custody dispute and the TRO he had just filed in Court, however the Court would not allow the fact that Appellant had just filed a TRO relating to the very issue of his ex-wife making false police calls, which had just occurred, to be brought before the jury (RT 449-450, 545, 599-601, 795, 874-875.). Christey then asked Deputies Pool to speak with appellant who also showed Pool the TRO which the court also refused to allow into evidence or testimony. Christey then directed the deputies to arrest appellant during the discussion with Pool, Deputy Brzozowski assaulted Appellant, however, that testimony was also struck from the record, Brzozowski never testified and Discovery on Bzozowski was denied (RT 451, 601-602. 1065).
A. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Convicted Appellant When Irrefutable Evidence Proved Appellants Innocence:
A.1. Appellant Drove At A Slow Speed And Never Endangered Public Or Property – VC § 2800 Cannot Apply
The trial Court and the Prosecution abused their oath of office and not only ignored blatant evidence proving appellant’s innocence, but actively conspired to unlawfully exclude such evidence from trial.
Not once did any State witness state that Appellant drove with a willful wanton disregard for the safety of public and property as required by VC § 2800. To the contrary, the only State witness testifying regarding the VC2800.2(a) conviction, stated that he had no idea what speed Appellant actually drove at:
Vol 3 P582: Questioning Deputy Pool:
18 Q And where did you see the Mitsubishi?
19 A It was coming up Hidden Valley Road from North
20 Rodeo Gulch.
21 Q Can you describe the speed it was traveling?
22 A It was -- it was driving over the speed limit.
23 MR. GUY-SMITH: I'm sorry. I will object.
24 THE COURT: Okay. And so without foundation I'm
25 going to sustain it.
26 BY MR. DROTTAR:
1 Q Do you have any estimate of what the speed was?
2 A No, I didn't.
3 MR. GUY-SMITH: Objection. Speculation. I'm
4 sorry. Withdraw.
5 THE COURT: He answered. You don't really have
6 any idea how fast it was going?
7 THE WITNESS: No.
8 THE COURT: All right.
The State Witness contradicts himself in other areas regarding speed, at one point he states that Appellant drove a constant 40 mph (impossible for the road), then at another point he states that he varied his speed:
Vol 3 P589: Questioning Deputy Pool:
5 BY MR. DROTTAR:
6 Q For the record, the yellow box says pursuit ends.
7 How would you describe the Appellant's speeds
8 during that time period from start to the turn? Were they
9 consistent? How would you describe them?
10 A They were consistent. He consistently was around
11 40 miles per hour.
Vol 4 P775: Questioning Deputy Pool:
16 Q Now, during the time that you were driving on the 10:13:59
17 road on March 10th, did you engage in that same behavior of 10:14:03
18 at times slowing down and speeding up again depending on 10:14:09
19 what the conditions of the road were? 10:14:12
20 A My vehicle, myself, yes. 10:14:13
Clearly the State Witness, Deputy Pool had no idea what speed Appellant was traveling at. Adding to the fact that the Sheriffs had no reason or Probable Cause to chase Appellant in the first place, further impounded by the fact that there is no underlying charge to the VC § 2800.2(a) charge as required by law!
Other state witnesses described Appellants speed as a ‘roll’
Vol 3 P594 L12: Speed of vehicle past Christey, a roll.
12 Q How would you describe the speed of the SUV as it
13 passed Sergeant Christey?
14 A It was -- it slowed down to more of a, I guess
15 you could call it a roll.
Evidence which the Court and Prosecution repeatedly and explicitly conspired to exclude from the Jury, the NETCOM report, proves that Appellant actually drove slowly, while Evidence on record shows the State Witness stating the alleged ‘chase’ duration was three minutes:
Vol 4 P786,787: Questioning Deputy Pool BY GUY-SMITH
22 Q And with regard to the distance, what do you have 10:28:36
23 as a distance there? 10:28:40
24 A It's 1.5 miles. 10:28:41
25 Q Where did you get that information at the time 10:28:43
26 that you wrote the pursuit report? 10:28:45
1 A That was given to me by Deputy Brozewski, 10:28:47
2 (phonetic). 10:28:47
3 Q I see. And it has a time there? 10:28:51
4 A Yes, it does. 10:28:55
5 Q What is the time that's put in there? 10:28:56
6 A You mean the actual time or time of the pursuit? 10:28:59
7 Q Time on your pursuit report. 10:29:00
8 A 1439. 10:29:02
9 Q I'm sorry? 10:29:04
10 A I'm sorry. 2:39. 10:29:06
11 Q Which is 1439? 10:29:08
12 A Yes. 10:29:10
13 Q Did you put that time in there? 10:29:10
14 A Yes, I did. 10:29:11
15 Q You didn't get that information from Deputy 10:29:13
16 Brozewski, (phonetic), did you? 10:29:16
17 A No. 10:29:16
18 Q Well, if the time was 1439 that the pursuit 10:29:18
19 commenced and it went on for two minutes, then the end time 10:29:26
20 would be what? 10:29:32
21 A 2:41. 10:29:33
22 Q I see. And that would be -- and if the time was 10:29:35
23 started at 1438, and it went on for three minutes, what 10:29:41
24 would the time be? 10:29:47
25 A 2:41. 10:29:50
While this information profited in State Witness testimony from the State Witness’ reliance on the NETCOM report, gives the State Witness testimony of an alleged chase duration of three minuets (180 seconds) over distance of 1.5miles – i.e. 1.5 miles / 180 seconds * 60 * 60 = 30 MPH, the distance quoted by Pool is longer than the actual distance of either 1.2 miles or 1.4 miles dependant on which of the two locations Deputy Pool places himself at the beginning of the alleged chase. This fact proves an alleged chase speed of 24 MPH or 28 MPH max.
There is therefore absolutely no possibility what so ever of the alleged chase in any way even approaching or meeting the “willful wanton disregard for safety of public and property” of the VC § 2800.2(a) or any lesser 2800.1 charges.
The State Witness testimony and the NETCOM Incident Recall provides irrefutable proof that Appellant is not guilty of the VC Sec 2800.2(a) Charge or any lesser charge or the dependent and ridiculous PC § 273 Child Endangerment Charge or consequentially the PC § 148(a)(1) Resisting Arrest charge since the arrest was false, despite the fact that Deputy Brzozowiski violently assaulted Appellant during the false arrest (All incidentally witnessed by Appellants poor children who had just been shot at by the Sheriffs).
So as to further remove any ambiguity what so ever relating to the impossibility of Appellant being guilty of the VC § 2800.2(a) charge or of any lesser 2800.1 charge, analysis of the actual NETCOM recording shows key points on the NETCOM recording, at Tape Time 5:27 where Deputy Pool can be heard saying: “It’s his vehicle.” Obviously this is when Appellant passed Deputy Pool who was parked on the side of Hidden Valley Road (Why did Deputy Pool not wait out of his vehicle and stop Appellant on Hidden Valley Road? Or why did Deputy Pool not leave his lights on when he was parked on Hidden Valley Road so as to indicate that he was conducting a traffic stop?).
Taking another key point on the tape, Tape Time 8:05 where Deputy Pool states: “4 1 5 were pulling onto Suncrest at 25 MPH” (Exhibit A). Simple math reveals an actual duration of at two minuets and thirty eight seconds to cover the point less than 1.2 miles away on Hidden Valley Drive where Deputy Pool waited for Appellant:
1.2 miles / 158 sec = 0.007594937 Miles Per Second
0.007594937 *60 *60 = 27.3 Miles Per Hour on Hidden Valley Drive
At these speeds on a road where local residents regularly travel at speeds of 40 MPH, it is utterly impossible for Appellant to be guilty of “driving with a willful disregard to the safety of persons and property” as required by VC § 2800.2(a) – this is neither a misdemeanor nor a felony, there is no crime other than the crimes the Sheriffs committed against Appellant and his children.
NOTE: The average speed slows even further to less than 24 mph when taking into account the Suncrest portion of the alleged “chase”.
The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed.
A.2. Evidence Showed Appellant Followed The Law - Prosecution Failed To Prove Intent Necessary For VC 2800.2(a)
Prosecution failed to prove any of the necessary specific intent for a VC § 2800.2(a) charge. The Court and Prosecution literally conspired to exclude relevant evidence that explicitly disproved any of necessary intent Appellant might have had, namely the TRO and Verified Criminal Complaint Appellant filed just prior to the Sheriffs ambushing Appellant and Appellants Children. The fact that Appellant had just filed the TRO in compliance with the law, proved that Appellant was in fact following the law and would have absolutely no reason or need to evade the police (Judicial Notice: In blatant violation of Due Process, the Santa Cruz Superior Court refused to hear the TRO Appellant lawfully filed before any of the events in this case on March 10, 2003 thereby making this case a mistrial).
According to statements made by the Sheriffs and the Prosecution, Appellant acted responsibly when he arrived home and went to first put his children in their home:
Vol 2: P313: Questioning Deputy Mary McConnel
7 BY MR. DROTTAR: 11:31:25
8 Q Do you have any confrontations of any kind in 11:31:29
9 front of the children with the officers and parents? 11:31:36
10 A Always that's a concern of ours whenever I deal 11:31:39
11 with a case like this or call like this, I automatically 11:31:42
12 tell the parents that we're going to do it in the best 11:31:44
13 interest of the children; that there won't be any kind of 11:31:49
14 a -- we won't go and physically retrieve their children 11:31:54
15 that need to be settled in family law Court but we will 11:31:57
16 hear the other side of the story and check on the 11:32:00
17 children's welfare if there's a concern of that. 11:32:02
Vol 2 P227: DROTTAR:
9 Well, Deputy McConnel spoke with Sergeant 10:30:55
10 Christey who was also at the Sheriff's substation. They 10:31:00
11 discussed all the facts, what had been told to them, and 10:31:03
12 tried to figure out what the best course of action would 10:31:06
13 be. They're concerned in a situation like this about 10:31:08
14 getting into a confrontation in front of the children. 10:31:12
15 They weren't quite sure how they could do this the best way 10:31:15
16 to minimize any potential risk to the children. 10:31:18
Who in their right mind would think that the Sheriffs would actually shoot at Appellant an his children? Appellant was acting responsibly by first going to place his children in their home out of harms way, particularly as it relates to previous false 911 calls made by appellants ex-wife (which the sheriffs were aware of), removing any possibility of the necessary specific intent for the VC § 2800.2(a) Charge or any lesser charge or the dependent and ridiculous PC § 273 Child Endangerment Charge or consequentially the PC § 148(a)(1) Resisting Arrest charge.
The court erred in specifically disallowing evidence that proved intent, the TRO Appellant filed just before the events of this case. The fact is that it was the Sheriffs who were not following the law.
The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed.
A.3. Necessary Intent Absent Sheriffs In Fact Knew Appellant Had Just Left The Courthouse
Adding further evidence to the fact that there was no necessary intent for the VC § 2800.2(a) charge, and brining further question to the Sheriffs actions, is the fact that the Sheriffs testified that they knew Appellant had just left the Courthouse before this incident.
The trial Court and Prosecution committed error and appellant’s conviction must be reversed and the case dismissed.
B. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When No Evidence Was Put Forward Proving Any Of The Alleged Crimes.
Deputy Pool who was driving on an unfamiliar windy road chasing after Appellant who had driven past Pools stationary silent vehicle at least 20 seconds before Pool even started following Appellant. In such conditions, Dep. Pool would have little if any perspective as to what speed he traveled at. Furthermore, it must be noted that Dep. Pool never stated that Petitioner drove with any "willful or wanton disregard to the safety of persons or property" as required by VC § 2800.2(a), all Dep. Pool testified was that he thought Petitioner drove around 40 mph (Which is actually a common speed of many of the residents along this private road). Irrefutable NETCOM evidence shows Appellant drove a slow 27mph.
Vol 3 P581: Pool even stated he had no idea how fast Appellant was driving when Appellant passed him.
1 Q Do you have any estimate of what the speed was?
2 A No, I didn't.
3 MR. GUY-SMITH: Objection. Speculation. I'm
4 sorry. Withdraw.
5 THE COURT: He answered. You don't really have
6 any idea how fast it was going?
7 THE WITNESS: No.
8 THE COURT: All right.
Dep. Pool was also caught out lying on the stand
during trial when he denied having ever had any discussions regarding
his testimony Ass. D.A. Stephen Drotter, or spoke with other officers
regarding this case see G. The Court And Prosecution Erred When They
Failed To Correct And In Fact Conspired To Cover Up Perjury By State
The Prosecutions case is utterly without merit or evidence.
The trial Court and the Prosecution abused their oath of office and not only ignored blatant evidence proving appellant’s innocence, but actively conspired to unlawfully exclude such evidence from trial and in fact attempted to manufacture false evidence against Appellant.
C. The Court Committed Error And Violated Appellant’s State And Federal Due Process Rights When It Disallowed Relevant Evidence:
C.1. Disallowing Entry of NETCOM Evidence That Proved Alleged Chase Speed Of 27 Mph.
The trial court abused its discretion when it prevented critical relevant evidence in the form of Government Documents that State Witnesses relied upon from being entered into the record and brought before the jury, in specific the NETCOM police recording which amongst other critical factors proved the duration of the alleged ‘chase’. Applied to the known distance, the NETCOM police recording, both transcript and tape, proves appellant drove at around 27 MPH along his private road, making it impossible for Appellant to be guilty of driving with a “willful wanton disregard for the safety of public and property”. Let it also be judicially noticed that the Santa Cruz Sheriffs cut the NETCOM tape sort of the ridiculous alleged Assault With A Deadly Weapon charge and any record of the Deputy shooting at Appellant and his children.
Vol 2 P 370 – questioning McConnel – 1st denial of entry of NETCOM report – and DA attempting to prevent NETCOM report going before the jury:
P370: L5: MR. GUY_SMITH: May I approach, Your Honor? I’m going to show you what’s been marked as Defense Exhibit A for identification and see whether or not you recognize – first of all, just whether you recognize the document?
(Whereupon, Computer Printout from NETCOM was marked for Defense Exhibit A for identification.)
BY MR. GUY-SMITH:
Q: Is that document that is a written transcription of all the radio traffic that would occur with regard to any investigation into –
MR. DROTTAR: Objection, Your Honor, foundation.
MR. GUY-SMITH: If you know.
THE COURT: Sustained.
MR. GUY-SMITH: If she knows. If she doesn’t know, she doesn’t know. If she know, she knows.
THE COURT: No. No. She may know because she thinks somebody told her, right, Mr. Guy-Smith. So let’s don’t do that. Let’s just ask her the questions that need to be asked and let’s see how far we get here.
BY MR GUY-SMITH:
Q: Do you recognize that document?
A: I do.
Q: Have you ever seen a document like that before?
A: A document, yes.
Q: Okay. Do you know what that document purports to be?
A: This appears to be a computer printout of radio traffic or occurances regarding 210 Suncrest Drive.
Q: Okay. Now, for the purposes of our discussion, is there any significant to you in 210 Suncrest Drive?
MR. DROTTAR: Again, Your Honor, objection. Foundation. Coming in as a business document. It’s not been established.
In the following section of transcript both The Court and Prosecution, who are eminently familiar with the method and basis of the NETCOM police recording, actively conspire in blatant deception to prevent a Government Document which proves the Appellants innocence from coming before the jury:
Vol 3 P539: GUY-SMITH questioning Sergeant Christey
8 Q Show you what's been marked Appellant AA for
9 identification. I'd like you to take a look at this
10 particular line right here and see whether or not that
11 refreshes your memory as to when, refreshes your memory as
12 to when you learned that Mr. Boustred had left the
14 A It is a time on a piece of paper.
15 Q I understand.
16 A As far as refreshing my memory --
17 Q Okay.
18 A -- I don't know that it does that. I don't know
19 who said that or if the dispatcher merely recorded it based
20 on what may be somebody else said. I'm not actually sure
21 what that says; however, it does state male half left the
22 courthouse at 1428. I don't know if that's when the
23 dispatcher heard it and typed it.
24 MR. DROTTAR: Objection, Your Honor. Hearsay.
25 MR. GUY-SMITH: So even -- the issue is it does
26 not refresh your memory?
1 THE COURT: Okay.
2 MR. GUY-SMITH: Okay.
3 THE WITNESS: No.
4 MR. GUY-SMITH: Fine. If it doesn't refresh your
5 memory, it doesn't refresh your memory.
6 THE COURT: All right. Then there was an
8 MR. DROTTAR: Yes, Your Honor, there was
9 objection to hearsay; motion to strike.
10 THE COURT: The thing she said about --
11 MR. DROTTAR: Yes, Your Honor.
12 THE COURT: All right. It will be granted.
13 Strike it, ladies and gentlemen. All right.
The State Witness Sergeant Christey who is eminently familiar with the NETCOM report continues the perjury on P 553 L 17 through to P 554 L5. Prosecution and the Court have a duty to ensure State Witnesses profit the truth and that justice ensues, clearly the Court and Prosecution actively conspired to prevent relevant evidence in the form of a Government Document, which according to California Evidence Code may not be excluded:
AUTHORITES: CALIFORNIA CODES EVIDENCE CODE SECTION 1280-1284
1280. Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:
(a) The writing was made by and within the scope of duty of a public employee.
(b) The writing was made at or near the time of the act, condition, or event.
(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
Deputy Pool however, admits on the record that he relied on the NETCOM report for the start and end times of the alleged ‘chase’.
Vol 4 P797: Deputy Pool admitting to his reliance on the NETCOM report:
13 Q And the way, you know, for your start time is 10:42:55
14 based upon your reliance of NETSCAM (SIC); is that it? 10:42:58
15 A NETCOM. 10:42:58
16 Q Net -- 10:43:03
17 A NETCOM. 10:43:04
` 9 Q And referring your attention to -- directing your 10:44:04
10 attention to notation 1438; that is the notation you were 10:44:13
11 referring to when you told us that it started at that time, 10:44:19
12 1438? 10:44:22
13 A Yes. 10:44:23
Vol 4 P798: Pool stating on the record that he relied on NETCOM report.
1 Q Showing you what's been marked Appellant's A for 10:43:29
2 identification, would you take a look at that? 10:43:35
3 A Okay. 10:43:37
4 Q Is that the NETCOM printout? 10:43:38
5 A Yes, it is. 10:43:40
6 Q Is that the document upon which you relied for 10:43:41
7 the time in which Mr. Boustred's car passed you; right? 10:43:45
8 A Yes. 10:43:51
Further evidence form the transcript illustrating the blatant disregard for the law and the most elementary ethical principles by The Court and Prosecution:
Vol 5 P1024:
10:05:57 4 MR. GUY-SMITH: And the other is that I did
10:05:58 5 forget yesterday to move the introduction of Appellant's A
10:06:04 6 and Appellant's K.
10:06:06 7 THE COURT: Well, you're all right because you're
10:06:09 8 not at the end of your case. We don't have to worry about
10:06:11 9 that. Have you looked at them, Mr. Drottar?
10:06:14 10 MR. DROTTAR: Yes. I would object. There's no
10:06:15 11 foundation for either of those to come in.
10:06:18 12 MR. GUY-SMITH: Foundation for both of them.
10:06:20 13 Appellant A is NETCOM report that Deputy Pool indicated he
10:06:25 14 relied upon for his date. He specifically -- he
10:06:31 15 specifically identified this particular --
10:06:38 16 THE COURT: Well, he said he made -- when he
10:06:40 17 looked at it, he made some reference to it.
10:06:43 18 MR. GUY-SMITH: He said it's a NETCOM report he
10:06:44 19 relied upon with the start time of 1438.
10:06:48 20 THE COURT: I think the reference is to NETCOM,
10:06:52 21 right. But in any event, I'll think about that. There's
10:07:00 22 no foundation as far as I'm concerned.
10:07:02 23 MR. GUY-SMITH: Well, I mean, if he identifies
10:07:04 24 the object, if I identifies --
10:07:05 25 THE COURT: Used it to refresh your recollection
10:07:09 26 from my view.
10:07:09 1 MR. GUY-SMITH: I used it to ask him what he
10:07:09 2 relied upon for the purposes of his start time of 1438.
10:07:14 3 And the other document is Appellant's K which is a pursuit
10:07:24 4 report that he identified as having filled out.
10:07:28 5 THE COURT: Right. Okay. I do remember him
10:07:30 6 talking about this. And you asked him about the time that
10:07:34 7 he filled in there and said 1439. So what's your position,
10:07:41 8 Mr. Drottar?
10:07:42 9 MR. DROTTAR: Your Honor, I don't see what the
10:07:42 10 relevance is or how it.
10:07:45 11 THE COURT: No, it's got relevance.
10:07:49 12 MR. DROTTAR: How it's admissible, officers fill
10:07:51 13 out all kinds of reports. Just because they fill it out
10:07:53 14 doesn't make it admissible report.
10:07:56 15 THE COURT: I'll go back and look at his
10:07:57 16 testimony, Mr. Guy-Smith, on both those, but I'll hold them
10:08:00 17 in abeyance until the end of your case. I won't admit them
10:08:04 18 at this point. I don't think the NETCOM report comes in
10:08:07 19 because I don't think even if he looked at it, you know, I
10:08:11 20 don't see how, unless you're telling me that he relied on
10:08:14 21 it for the purposes of what --
10:08:16 22 MR. GUY-SMITH: He relied on it for the purposes
10:08:20 23 of determining when the start time was of the pursuit.
10:08:23 24 THE COURT: All right. I'll go back and look at
10:08:24 25 it. That may be right. Okay. So now, what else?
10:08:30 26 MR. GUY-SMITH: Is it okay if I ask him how old
10:08:34 1 it is?
10:08:34 2 THE COURT: I'm sorry? What? I still didn't get
10:08:39 3 you.
10:08:40 4 MR. GUY-SMITH: Is it okay if I ask him how old
10:08:42 5 it is?
10:08:43 6 THE COURT: We're getting down to argument. I can
10:08:45 7 see --
Vol 5 P : Court excluding relevant NETCOM evidence relied upon by Prosecution’s witnesses.
15:46:47 15 MR. GUY-SMITH: I'm moving into evidence A, C.
15:46:56 16 THE COURT: You're looking at these, Mr. Drottar,
15:46:57 17 while he's talking about them?
15:47:00 18 MR. GUY-SMITH: A and C we've been fighting
15:47:01 19 about.
15:47:01 20 THE COURT: A and C. All right. I got those. I
15:47:05 21 know what those are.
15:47:05 22 MR. GUY-SMITH: And then it seems I see what's
15:47:14 23 happening here. I'm sorry. A, C and then I am moving into
15:47:23 24 evidence K through the end, which is K, L.
15:47:34 25 THE COURT: Y.
15:47:35 26 MR. DROTTAR: K through Y.
15:47:38 1 MR. GUY-SMITH: With regard to the exhibits that
15:47:41 2 I am moving into evidence, which are photographs that were
15:47:46 3 identified, I believe those are exhibits C, and then
15:47:50 4 exhibits L through Y. Those were exhibits that were
15:48:02 5 testified today by Mr. Boustred.
15:48:07 6 THE COURT: Mr. Drottar, any objection from --
15:48:11 7 let's see. Let's take them. What is it?
15:48:14 8 MR. DROTTAR: L through Y I have no objection,
15:48:15 9 Your Honor.
15:48:16 10 THE COURT: L through Y?
15:48:18 11 MR. DROTTAR: Those were the ones testified to
15:48:20 12 this afternoon.
15:48:21 13 THE COURT: Okay. So they'll be admitted.
15:48:22 14 MR. GUY-SMITH: As was C. C was is the exhibit
15:48:29 15 of the car.
15:48:32 16 THE COURT: Car going through the gate.
15:48:34 17 MR. GUY-SMITH: Going through the gate.
15:48:34 18 THE COURT: Right.
15:48:35 19 MR. GUY-SMITH: Mr. Boustred testified.
15:48:37 20 MR. DROTTAR: I'm not questioning counsel except
15:48:40 21 for the fact I wrote down B for whatever reason.
15:48:44 22 THE COURT: Was it marked. It's marked. Take a
15:48:48 23 look at C, see if you have any objection.
15:48:53 24 You have those Miss [Fitch]? Any objection to C
15:48:55 25 and the others as indicated through Y, Mr. Drottar?
15:48:59 26 MR. DROTTAR: No, Your Honor.
15:49:02 1 THE COURT: All right. So only two left are
15:49:07 2 the --
15:49:07 3 MR. GUY-SMITH: A and K.
15:49:08 4 THE COURT: A and K. I was going to go back and
15:49:11 5 look at Deputy Pool's testimony because I do not remember
15:49:15 6 what Mr. Guy-Smith said. Although certainly it may thereby
15:49:21 7 -- I don't remember him relying on it. I remember him
15:49:24 8 being asked about them but I don't remember that he relied
15:49:28 9 on them such that there was a foundation here that could be
15:49:32 10 established. So --
15:49:35 11 MR. DROTTAR: Your Honor, if I can be heard
15:49:35 12 regarding the NETCOM documents?
15:49:37 13 THE COURT: All right.
15:49:42 14 MR. DROTTAR: There was certainly not those
15:49:43 15 NETCOM documents are, what, five pages long, in the Exhibit
15:49:46 16 4, or five pages.
15:49:49 17 MR. GUY-SMITH: The answer to that question --
15:49:51 18 THE COURT: I don't think so. A is one, two,
15:49:56 19 three pages. And the -- what's pursuit report isn't that
15:50:01 20 what we said entitled pursuit report, it's K. Is pursuit
15:50:06 21 report, it's one page.
15:50:08 22 MR. DROTTAR: The problem is with the NETCOM
15:50:13 23 report specifically there's tons of information on that
15:50:19 24 that is subject to all types of interpretation. As the
15:50:23 25 Court's aware with NETCOM, those are not transcripts of
15:50:26 26 anything. That's simply dispatchers logging in times and
15:50:31 1 typing in shorthand what things mean. Quite often there
15:50:34 2 are mistakes made by the dispatcher that has nothing to do
15:50:40 3 with the officer. And there's times and, times, blocks and
15:50:48 4 streets that are listed. There's no foundation that those
15:50:55 5 are accurate in any way, shape or form.
15:50:58 6 MR. GUY-SMITH: You know --
15:50:59 7 MR. DROTTAR: Deputy Pool did not testify that
15:51:01 8 he's aware of a person who input that, he had information.
15:51:06 9 He doesn't know how it was inputted. Certainly counsel has
15:51:09 10 a copy of the NETCOM tape and had a copy of the NETCOM
15:51:15 11 tape. If he had wished to put actual radio traffic in,
15:51:21 12 then the NETCOM tape would have been the way to do it.
15:51:25 13 Because then you would get the actual traffic. Here what
15:51:27 14 you have is you have times that are entered by a
15:51:31 15 dispatcher. Deputy Pool indicated that they faxed him that
15:51:35 16 document and he looked at that document regarding the
15:51:41 17 times. The other information. There's no indicia in
15:51:45 18 reliability to get over any exception to have that
15:51:49 19 introduced.
15:51:51 20 MR. GUY-SMITH: Deputy Pool testified -- I'm
15:51:53 21 sorry. Are you done? Deputy Pool testified that he relied
15:51:58 22 upon that document as it related to the time that he began
15:52:04 23 and he ended his pursuit. If the Court -- if the Court is
15:52:11 24 of the opinion that the balance of that document is
15:52:18 25 information that should not come in, although Deputy Pool
15:52:27 26 is the one who identified that document as being whatever
15:52:31 1 it may be, I'm willing to live with such a ruling.
15:52:39 2 THE COURT: All right.
15:52:40 3 MR. GUY-SMITH: I do believe that with regard to
15:52:43 4 the time that he began his pursuit and the time that his
15:52:47 5 pursuit was finished, on documented, I mean, the rest lf
15:52:55 6 it. You know, I can live without it, quite frankly. I'd
15:53:00 7 rather have it but I can live without it.
15:53:02 8 THE COURT: I understand. I just don't think
15:53:05 9 there's any foundation for this even though it was, you
15:53:08 10 know, faxed over to him and supplied to him. He just takes
15:53:10 11 the time that's written on it. There's nothing to suggest
15:53:14 12 here that that's accurate in any event. And that's where
15:53:16 13 we're going. And it seems to me we are -- I don't see that
15:53:20 14 it comes in.
15:53:21 15 MR. GUY-SMITH: Well, then, I take it there will
15:53:23 16 be no argument by the prosecution as to the length of the
15:53:26 17 pursuit. I take it the testimony as it relates to the
15:53:29 18 pursuit report, which is exhibit K and all of that
15:53:33 19 testimony, will not be argued because obviously the issue
15:53:37 20 of the time, the time of the pursuit is something which I
15:53:42 21 think is something the Court must devote to Mr. Drottar and
15:53:46 22 to myself. There's no doubt about the fact that deputy
15:53:49 23 said that he relied upon that particular document with
15:53:54 24 regard to his start time. That's what he told us. That's
15:53:57 25 what he said.
15:53:58 26 THE COURT: Well, I understand. The problem is,
15:54:00 1 is that that may or may not be accurate.
15:54:06 2 MR. GUY-SMITH: But that's a different issue,
15:54:07 3 Your Honor. That's a totallily different issue because
15:54:13 4 fact of the matter is at some point in time there's going,
15:54:14 5 you know as well as I do there's going to be discussion
15:54:17 6 about how long this pursuit took. There's a document that
15:54:20 7 indicates that the pursuit began and there was a radio
15:54:25 8 transmission, the pursuit began at 1438 hours. And he
15:54:29 9 testified that he believed it began at 1438 hours as a
15:54:33 10 result of reviewing that document. And stark contrast to
15:54:39 11 that document we have a document that he filled out that
15:54:42 12 has 1439 hours. There's a minute. And that minute may or
15:54:48 13 may not be -- may or may not be of importance to regard
15:54:52 14 either Mr. Drottar's argument or my own. We also had a
15:54:55 15 concluding time of the pursuit. I think all parties
15:54:58 16 agreed. By all parties I mean that Deputy Pool agreed that
15:55:04 17 the concluding time of the pursuit as he put it was at
15:55:07 18 1441. And as a matter of fact, if I'm not mistaken, during
15:55:11 19 the examination of Deputy Pool, Mr. Drottar elicited
15:55:16 20 information from that same document with regard to when the
15:55:20 21 pursuit time ended because there was an indication the
15:55:23 22 subject was running into the house. There's also another
15:55:27 23 indication with regard to the time of 1441 as it relates to
15:55:33 24 what was going on in terms of the pursuit and the location
15:55:37 25 of the pursuit which is I believe as it says there 1100
15:55:50 26 Suncrest which is clearly information that is potentially
15:55:54 1 probative of issues this jury is to determine with regard
15:55:57 2 to time. Because time and distance will become a factor in
15:56:03 3 determining the guilt or innocence of my client with regard
15:56:07 4 to certain of the charges that are here.
15:56:11 5 THE COURT: All right.
15:56:11 6 MR. GUY-SMITH: Submitted.
15:56:13 7 THE COURT: Thank you. And the Court has to
15:56:17 8 determine whether there is not only relevant but whether or
15:56:22 9 not there's underlying reliability. And having not only
15:56:28 10 some familiarity with the way in which the, this
15:56:34 11 information is collected through NETCOM but also based on
15:56:38 12 what the document shows itself, I just can't find that it's
15:56:43 13 reliable because there is nothing to show that
15:56:47 14 foundationally. While Deputy Pool said there was a time he
15:56:49 15 utilized and you're certainly free to explore that in your
15:56:54 16 argument that he said, yeah, I utilized the time of 1438.
15:56:58 17 On this other document I had 1439. Those are certainly
15:57:02 18 open to argument.
15:57:03 19 However, the documents themselves it seems to me
15:57:06 20 are not admissible. So they're excluded. All right. Do
15:57:09 21 we have any other --
15:57:11 22 MR. GUY-SMITH: For the purposes of the record I
15:57:12 23 would ask that those documents, understanding they are not
15:57:16 24 going to be introduced, are made part of the record so that
15:57:21 25 at any other point in time they're available for any
15:57:24 26 Court's review such as necessary?
C.2. Court Disallowing Evidence of TRO Appellant Filed Which Proved Intent To Evade Was Absent. Ant The Court Erred In Failing to Declare a Mistrial.
The court and Prosecution not only conspired to unlawfully exclude the NETCOM report they also conspired to exclude all evidence of the Temporary Restraining Order Appellant filed just before the events of this case. The TRO Appellant filed sought the courts protection in preventing Appellant’s ex-wife from resuming false police calls, which was taking place at that very time. The TRO relates directly to the events in this case as it show that Appellant was following the law and had absolutely no reason to evade the police. The best way to illustrate how utterly out of control The Court and Prosecution is in their blatant attempt to operate a sham trial is to put forward the actual transcript, showing that this is not Court or Prosecution error, it illustrates further blatant intent by The Court and Prosecution to exclude relevant evidence so as to falsely convict Appellant (similar sham proceedings are found on in Vol 4 pages 960 through to 963 relating to the Court refusing relevant info which relates amongst other issues to intent:
Vol 5 P1038: Court Striking evidence re TRO:
10:44:03 1 A I must have got here around about 10:00 to file a
10:44:07 2 temporary restraining order.
10:44:09 3 MR. DROTTAR: Objection, Your Honor, irrelevant.
10:44:11 4 THE COURT: Sustained.
10:44:14 5 MR. DROTTAR: Move to strike.
10:44:15 6 THE COURT: It will be stricken. Jurors will
10:44:16 7 disregard it.
Vol 5 P1038: Court again striking testimony re TRO
10:44:41 19 A Far too long. I came to file the TRO.
10:44:47 20 MR. DROTTAR: Objection, Your Honor.
10:44:50 21 Nonresponsive. Motion to strike.
10:44:50 22 THE COURT: Sustained. Okay.
(Note the Court allowing Prosecution Object yet instructing Defense throughout the trial that there are to be no speaking objections.)
Vol 3 P513: Court prevents evidence regarding TRO and Verified Criminal Complaint from being brought before the jury – significant Due Process Violation.
14:05:01 5 Q Now, during the period of time that you were in