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WORD Version of File:
Opening Brief 6th Didt (Word)
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PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff & Respondent,
vs.
CLIVE BOUSTRED,
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.
TOC \o "1-3" \h \z
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EXECUTIVE SUMMARY STATEMENT OF FACTS
PAGEREF _Toc119414131 \h 4
JUDICIAL NOTICE
PAGEREF _Toc119414132 \h 5
TEN DAY JUDICIAL NOTICE & CONTRACT - TIME IS OF THE ESSENCE:
PAGEREF _Toc119414133 \h 7
STATEMENT OF THE CASE
PAGEREF _Toc119414134 \h 9
STATEMENT OF FACTS - CASE BACKGROUND
PAGEREF _Toc119414135 \h 14
CASE TIMELINE
PAGEREF _Toc119414136 \h 26
DEFENSE & PROSECUTIONS ARGUMENT
PAGEREF _Toc119414137 \h 27
A. The Defense’s Case
PAGEREF _Toc119414138 \h 27
B. The Prosecution’s Case
PAGEREF _Toc119414139 \h 29
ARGUMENT
PAGEREF _Toc119414140 \h 37
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:
PAGEREF _Toc119414141 \h 37
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.
PAGEREF _Toc119414142 \h 44
C. The Court Committed Error And Violated Appellant’s State And Federal
Due Process Rights When It Disallowed Relevant Evidence:
PAGEREF _Toc119414143 \h 46
D. The Court Committed Error And Violated Appellant’s State And Federal
Due Process Rights When It Refused To First Hear Appellants TRO Filed
Before The Events Of This Case.
PAGEREF _Toc119414144 \h 76
E. Court Erred In Disallowing Relevant Discovery Information On Officer
Who Assaulted Appellant During The False Arrest.
PAGEREF _Toc119414145 \h 76
F. Court Acted With Extreme Bias Allowing Hearsay And Irrelevant
Evidence By Prosecutions Witnesses And Ignored Valid Objections By
Defense. The Court Even Litigated For The Prosecution.
PAGEREF _Toc119414146 \h 77
G. The Court And Prosecution Erred When They Failed To Correct And In
Fact Conspired To Cover Up Perjury By State Witnesses.
PAGEREF _Toc119414147 \h 83
H. Court Erred In Preventing Evidence Of State Witness Changing
Testimony Between Preliminary Examination and Trial – Affecting
Believability Of Witness And Outcome Of Trial.
PAGEREF _Toc119414148 \h 90
I. Court Erred In Limiting And Striking Appellant’s Relevant Testimony
Relating to 6 month anniversary 4 False Misdemeanors and the related
false arrest in Mill Valley.
PAGEREF _Toc119414149 \h 92
J. State Witness’ And Prosecution’s Fraud Voids Trial.
PAGEREF _Toc119414150 \h 113
K. The Court Committed Error And Violated Appellant’s State And Federal
Due Process Rights When It Failed To Dismiss The Case For No Underlying
Charge Or Probable Cause For The VC § 2800 Charge.
PAGEREF _Toc119414151 \h 114
L. The Court Failed To Establish Subject Matter Jurisdiction.
PAGEREF _Toc119414152 \h 115
M. The Court Committed Error And Violated Appellant’s State And Federal
Due Process Rights When It Created A Situation Where Appellant Was
Forced Into An Unacceptable Compromise.
PAGEREF _Toc119414153 \h 116
N. The Court Erred In Denying Defense Jury Instructions And Allowed
Misleading Jury Instructions By Prosecution.
PAGEREF _Toc119414154 \h 118
O. Ineffective Counsel.
PAGEREF _Toc119414155 \h 121
P. The Court Committed Error And Violated Appellant’s State And Federal
Due Process Rights When It Dismissed One Juror For Cause And Refused To
Dismiss A Second Juror For Cause, Irreparably Harming His Right To A
Fair And Impartial Jury.
PAGEREF _Toc119414156 \h 125
Q. The Trial Court Committed Error When It Denied Appellant’s Penal Code
Section 1118.1 Motion To Reduce Count 2, Felony Vehicle Code Section
2800.2, To The Misdemeanor Vehicle Code Section 2800.1 Because The
Evidence Was Insufficient To Support The Felony Charge.
PAGEREF _Toc119414157 \h 136
R. The Trial Court Committed Error When Found Substantial Evidence
Contradicted The Felony Evading An Officer Charge And Should Have
Reduced The Charge To A Misdemeanor.
PAGEREF _Toc119414158 \h 142
LEGAL AUTHORITIES
PAGEREF _Toc119414159 \h 154
CONCLUSION
PAGEREF _Toc119414160 \h 174
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
Page 4. While only matters relating to
the false charges and violations of legal standard by the Court and
Prosecution need be addressed in this Opening Brief, as a consequence of
the State Counsel incorporating libelous and false information from the
Prosecution as Case Background, a reasonably comprehensive Case
Background section titled “STATEMENT OF FACTS - CASE BACKGROUND”
starting on Page 14 has been included to
set the record straight.
Legal Authorities have been incorporated in a
section titled as such (Page 154) and
have not been included in each and every argument so as to prevent
repeated duplication.
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.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:
581
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
BY POOL:
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
787
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.
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
Witnesses Page 83.
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.
The trial Court and Prosecution committed error and
appellant’s conviction must be reversed and the case dismissed.
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?
MCConnel: Yes,
(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?
P371:
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
13
courthouse?
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?
540
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
7
objection.
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.
1025
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
1026
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.
1168
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.
1169
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
1170
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
1171
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,
1172
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
1173
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?
The trial Court and Prosecution committed error and
appellant’s conviction must be reversed and the case dismissed.
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
14:05:07 6 the
garage, Mr. Boustred gave you information about his
14:05:12 7 view
of issues concerning child custody; correct?
14:05:16 8
A He gave me some views that the father never
14:05:20 9 went
--
14:05:20
10 MR. DROTTAR: Objection, Your Honor. Your Honor,
14:05:22 11
hearsay.
14:05:23
12 THE COURT: Okay.
14:05:24
13 MR. DROTTAR: As to content.
14:05:25 14
MR. GUY-SMITH: Not offered to prove the truth of
14:05:29 15 the
matter asserted. It's offered -- excuse me.
14:05:30
16 THE COURT: Just a second. Let's approach. Thank
14:05:32 17 you.
14:07:42 18
(Discussion held at the bench not reported.)
14:07:42
19 THE COURT: Ladies and gentlemen, I'm going to ask
14:07:43 20 you
to leave the courtroom for a couple minutes, please.
14:07:47 21
Sorry. Once in awhile it happens and everything --
14:07:48 22
Sergeant Christey. Yes. Okay. Remember my admonition.
14:07:56 23 All
right.
14:08:26
24 (Jurors leave the courtroom.)
14:08:28
25 THE COURT: Sergeant Christey, maybe you ought to
14:08:29 26 leave
right now too just for the purposes of our discussion
514
14:08:34 1 here.
Then we'll call you back in. Thanks.
14:08:35
2 (Witness leaves the courtroom.)
14:08:35
3 (The following proceedings were held outside the
14:08:35 4
presence of the jury.)
14:08:43
5 THE COURT: All right. We're out of the presence
14:08:44 6 of the
jurors and alternates. First of all, gentlemen, I
14:08:47 7 hope
we're not going to have what we just had. And that is
14:08:50 8 to
have both of you so upset, as my characterization, that
14:08:58 9 we
have raised voices at the sidebar. That's not going to
14:09:04 10 help.
And the purpose of sidebar is to discuss issues such
14:09:06 11
that this jury does not hear things that they shouldn't
14:09:10 12 here.
14:09:10
13 My job is to make those legal decisions. Both of
14:09:13 14 you
are good advocates for your side. I can see that. You
14:09:18 15 both
want to put your position clearly before this jury. I
14:09:23 16 want
to rule in the best way I can. But I will not
14:09:26 17
tolerate actions by either of you that will in any way
14:09:31 18 affect
this jury and their ability to make a fair decision.
14:09:36
19 So I want both of you to behave the way in which
14:09:42 20
lawyers do and we're going to go from there.
14:09:45
21 I've asked the jury to leave so we can discuss
14:09:47 22 this
further because it seemed to me you weren't being able
14:09:51 23 to do
that without voices being raised such that the jury
14:09:54 24 could
possibly hear.
14:09:55
25 So now we're at the juncture of Mr. Guy-Smith
14:10:01 26
wanting to elicit from Sergeant Christey apparently what
515
14:10:06 1 was
said. And as I understand it, Mr. Guy-Smith, you want
14:10:11 2 to
offer this to the -- for the truth of the matter but
14:10:11 3 simply
from the standpoint of how it affected Sergeant
14:10:16 4
Christey in terms of what she did, which is similar to what
14:10:20 5 the
people have offered in the past as far as statements
14:10:24 6 that
were made but offer them for a nonhearsay purpose
14:10:28 7 again.
14:10:31
8 So -- and that being a limited purpose and the
14:10:32 9 jury
was so instructed at the time; am I right,
14:10:35 10 Mr.
Guy-Smith, is that it?
14:10:37
11 MR. GUY-SMITH: That is correct. I have, I have
14:10:42 12 been
quite attentive to the manner in which what I believe
14:10:47 13 to be
hearsay was coming into this trial. And I've been
14:10:52 14 quite
attentive to the ruling of the Court. And the ruling
14:10:54 15 of
the Court has consistently been each and every time that
14:11:00 16 the
information can be considered not to prove the truth of
14:11:04 17 the
matter asserted but rather for the purposes of whether
14:11:08 18 or
not it was information that was considered by the
14:11:14 19
officer in the performance of their duties.
14:11:16
20 At this point in time, my client factually on
14:11:23 21
that day has not been arrested. He is involved and having
14:11:29 22 a
discussion with, I believe, a Sergeant Christey and I
14:11:33 23
think others with regard to a series of issues.
14:11:40
24 Those issues as I understand them cover I think
14:11:41 25 three
separate areas. Those areas were:
14:11:48
26 One, his general views as was elicited. If I
516
14:11:53 1 might
also add on direct examination. So the door was
14:11:55 2
opened. And not by me. Those views were one on his
14:12:01 3
issues, his views concerning custody.
14:12:04
4 Two, his views concerning Court orders. Court
14:12:04 5
orders;
14:12:10
6 and, three, Sergeant Christey's concerns with
14:12:14 7 regard
to what had occurred just immediately prior to them
14:12:19 8
entering the garage.
14:12:20
9 Those are the three areas of conversation. I'm
14:12:24 10 not
intending on going through a blow-by-blow factual
14:12:30 11
recitation because, quite frankly, among other things as
14:12:35 12
offended as I was at the time I objected, I remain
14:12:38 13
offended, but in terms of issues concerning general areas
14:12:42 14 of
conversation and only general areas of conversation, I
14:12:48 15
believe that this is information that I'm able to inquire
14:12:53 16 about
for a number of reasons.
14:12:56
17 Not only the reasons that I have laid out which
14:12:59 18 is,
one, is relevant for the purposes of the jury making
14:13:04 19
determination of what information in general sense Sergeant
14:13:08 20
Christey had with regard to her activities which has been
14:13:13 21 the
theme of Mr. Drottar's presentation again and again and
14:13:16 22 again,
and the Court has so ruled; but also because Mr.
14:13:22 23
Drottar by questions that he asked of Sergeant Christey in
14:13:26 24
direct examination opened this up.
14:13:29
25 And so far as I'm concerned, he opened it up well
14:13:34 26 beyond
what my intention is here.
517
14:13:35
1 THE COURT: All right. Well, let me ask you this,
14:13:38 2 Mr.
Guy-Smith. I don't know specifically what your
14:13:43 3
reference is to when he opened it up, by what kind of --
14:13:48
4 MR. GUY-SMITH: He asked her whether or not she
14:13:49 5 had
a conversation with my client in the garage.
14:13:54
6 THE COURT: I see.
14:13:57
7 MR. GUY-SMITH: That's about as opened up as you
14:13:57 8 can
get. You can't get it less opened up than that.
14:14:01
9 Now, he may have been thinking about something
14:14:03 10 else
at the time but that was the question asked. He
14:14:07 11 got --
14:14:08 12
MR. DROTTAR: Your Honor, I'm sorry.
14:14:10
13 MR. GUY-SMITH: And he received a response to
14:14:11 14
that question.
14:14:13
15 THE COURT: All right. I get it. Mr. Drottar?
14:14:15
16 MR. DROTTAR: As to opening the door, did
14:14:19 17
somebody say something to you doesn't open the door to what
14:14:21 18 the
content of the conversation was.
14:14:23
19 If I asked Deputy Christey: Deputy Christey,
14:14:25 20 what
did he tell you? Well, gosh, I think I opened the
14:14:30 21 door,
absolutely. But when I say: Did you talk to him?
14:14:32 22 Yes.
Okay. There's a conversation.
14:14:34
23 I mean, they're in the garage for half an hour.
14:14:37 24 Are
you not going to tell the jury that he had a
14:14:39 25
conversation?
14:14:39
26 What did you do in the garage? Did you beat the
518
14:14:43 1
crud out of him? Did you play ping-pong with him? No.
14:14:45
2 The question: Did you talk to somebody? But
14:14:47 3 Your
Honor, if I can go back to my objection, which I
14:14:52 4
haven't been heard on, the hearsay objection.
14:14:55
5 Number one, the reason these things have come in
14:14:59 6 have
been because of the charges, 245(c), on Deputy
14:15:04 7
Christey and Deputy MacDonald. All this hearsay has come
14:15:08 8 in
based on that. Based on the 148, based on the 2800.
14:15:16 9 The
245(c) has already occurred. It's over. It doesn't
14:15:21 10 matter
what Deputy Christey finds out after-the-fact in
14:15:24 11
regards to whether she was acting in the performance of her
14:15:27 12 duties
at the time that she was assaulted by the Appellant.
14:15:31 13 It
doesn't matter what happens after-the-fact in regard to
14:15:35 14 the
148 where he failed to abide by her commands.
14:15:40
15 The things that she learns after don't have
14:15:43 16
anything to do with whether she was acting as she should
14:15:48 17 have,
whether she had reasonable suspicion or probable
14:15:50 18 cause
at the time.
14:15:54
19 THE COURT: Well --
14:15:55
20 MR. DROTTAR: Vague and ambiguous as the reading
14:15:56 21 the
letter that she finds after-the-fact isn't relevant to
14:16:03 22 the
148 at the time or reading the Palcer County report
14:16:05 23 after
the fact, isn't relevant to the 148 at the time
14:16:09 24 we're
talking.
14:16:11 25
THE COURT: How did it affect her actions at this
14:16:13 26 point,
Mr. Guy-Smith?
519
14:16:14
1 MR. GUY-SMITH: Because she still has the
14:16:18 2
discretion to make a determination of whether or not she is
14:16:21 3
going to press charges against Mr. Boustred. And she may
14:16:27 4 take
into account a panoply of considerations that
14:16:31 5
otherwise would not have been taken into account.
14:16:34
6 And I've been in cases, as I know you have
14:16:37 7
before, where there has in fact been -- a charge been and
14:16:43 8
activity that would form the basis of the charge and the
14:16:47 9 police
officer, based upon their consideration of all the
14:16:50 10 facts
and circumstances surrounding the particular
14:16:53 11
incident, has made a determination that is not appropriate
14:16:56 12 for a
charge to be levied against a particular Appellant
14:17:01 13
because that's part of what they do as police officers.
14:17:03
14 Now, once again, I wasn't planning on spending a
14:17:06 15 lot of
time here, but I will say for the purposes of the
14:17:09 16
record, because I think it's -- two things are important.
14:17:12
17 First of all, Mr. Drottar is at best disingenuous
14:17:16 18 with
regard to the question asked and response received,
14:17:19 19
because Sergeant Christey testified on direct that my
14:17:27 20
client talked about custody issues and talked about the
14:17:31 21
order.
14:17:33
22 Now, I didn't elicit that testimony. That's how
14:17:38 23 he
opened the door. If had he not asked those questions,
14:17:41 24 that
door would not be open.
14:17:43 25
But I am also very troubled by something
14:17:47 26 Mr.
Drottar just said, which is the reason why I have made
520
14:17:52 1 each
and every objection I've made with regard to where
14:17:55 2 we've
been going. And he said the following:
14:17:57
3 All this hearsay has come in based on the
14:18:03 4
charges.
14:18:04
5 Now, if ever there was a plainer indication of
14:18:09 6
the People's intent with regard to the use of this
14:18:12 7
information, I can't think of one. And I am, quite
14:18:17 8
frankly, Your Honor, an independent limiting instruction
14:18:19 9 you
gave because this is what I started off being concerned
14:18:23 10 about,
because I have been around for a long enough period
14:18:27 11 of
time, as have you, to know about the difficulties
14:18:30 12
limiting instructions which we talked about at the
14:18:33 13
beginning.
14:18:33
14 I am offended because in fact what Mr. Drottar
14:18:37 15 has
done is he is indicating by this particular language
14:18:42 16 all
this hearsay has come in based on the charges, what his
14:18:47 17
specific intent was and what he wanted to have done. And
14:18:52 18 he
intended then and he intends now to have this
14:18:56 19
information used specifically for that purpose.
14:18:59
20 And since he has made it that clear, I at this
14:19:03 21 point,
unfortunately, for the purposes of the record, I
14:19:07 22
have to move, one, for a mistrial. And two for a hearing
14:19:13 23
for sanctions based upon prosecutorial misconduct because
14:19:18 24 his
activities indicate precisely that particular intent.
14:19:21 25 Not
something that I am very pleased about having to do but
14:19:25 26 having
heard that particular statement, I think for the
521
14:19:28 1
purposes of protecting my client, I now am in a position
14:19:32 2 where
I have to do that.
14:19:35
3 THE COURT: Mr. Drottar?
14:19:36
4 MR. DROTTAR: Your Honor, one: The statement
14:19:47 5 made,
the hearsay for the charges because the charges have
14:19:52 6
elements. Elements have to be proven by the People. We
14:19:56 7 have
the burden. The same reason I did the motion In
14:19:59 8 Limine
to have this hearsay come into evidence is because
14:20:03 9 of the
fact that a lawful arrest or detention must be based
14:20:07 10 upon
reasonable cause or reasonable suspicion.
14:20:10
11 THE COURT: His point is that --
14:20:12
12 MR. DROTTAR: It is my burden to prove that.
14:20:13
13 THE COURT: But his point is you're using the
14:20:15 14
word "hearsay" which he believes belies your ultimate
14:20:18 15
motives here, Mr. Drottar. That's what he's talking about
14:20:21 16 in
terms of the fact that you said you offered it for
14:20:24 17
nonhearsay purposes. And now you're using the
14:20:28 18
word "hearsay" to convey what he believed in the first
14:20:31 19
instance apparently that that was your purpose or
14:20:33 20
motivation. Okay? That's what he's talking about.
14:20:39
21 MR. DROTTAR: It is being used for nonhearsay
14:20:41 22
purposes. Hearsay being used for nonhearsay purposes
14:20:44 23 that's
what it is. It's not an exception to the hearsay
14:20:47 24 rule.
This is hearsay that is used for nonhearsay
14:20:52 25
purposes. By me using the term "hearsay" is ludicrous way
14:20:59 26 for
somebody to say that this is prosecutorial misconduct.
522
14:21:05
1 MR. GUY-SMITH: Your Honor --
14:21:06
2 MR. DROTTAR: And it sticks on my tongue that I
14:21:09 3 would
be accused of such a things. Certainly never
14:21:14 4
happened as my ten years as a prosecutor and using the term
14:21:18 5
hearsay, which is what it is, because hearsay used for a
14:21:22 6
nonhearsay purpose and nonhearsay purpose is to prove the
14:21:25 7
elements of the offense that the officers had reasonable
14:21:30 8
suspicion and reasonable cause to detain the Appellant for
14:21:35 9 this
investigation. And that is in the jury instructions.
14:21:38 10 That's
my burden. That's what I have to prove. That's why
14:21:43 11 it's
being introduced.
14:21:43
12 And counsel wants to back door the Appellant's
14:21:47 13
statements without him having to testify, I guess. He
14:21:52 14 wants
to back door his statements that are absolutely
14:21:57 15
irrelevant to the underlying charges because his statements
14:22:01 16 have
nothing to do with the officers reasonable suspicion
14:22:05 17 or
probable cause.
14:22:08
18 Of course the officers can relay on hearsay for
14:22:09 19
reasonable suspicion and probable cause. That's what they
14:22:13 20 have
to do all the time. And that's why we use it.
14:22:18
21 THE COURT: Well, this is not a hearing about the
14:22:18 22 legal
sufficiency of the arrest in that sense that a Court
14:22:22 23 has to
find probable cause.
14:22:26
24 What the jury has to find is that they're in the
14:22:28 25 lawful
performance of their duties. And so to that extent
14:22:32 26 I'll
allow it for that limited purpose the kind of
523
14:22:36 1
statements that are made here. But his point,
14:22:39 2 Mr.
Drottar, is that you keep using the word "hearsay."
14:22:42 3 Well,
there's a specific definition in the law for hearsay.
14:22:45 4 A
statement not made under oath out of court. An out of
14:22:51 5 court
statement. Okay. So if it's not then offered for
14:22:54 6 truth
of the matter, it has to either be defined as a
14:22:58 7
hearsay statement or a nonhearsay statement. And his point
14:23:02 8 is
when you keep using the word hearsay, that it belies
14:23:05 9
your real motivation but you otherwise couldn't get it in
14:23:08 10 as
hearsay, but there's no exception to it. You see?
14:23:11 11 That's
his point. So that's what he's saying here if I
14:23:16 12
understand him correctly. So --
14:23:18
13 MR. DROTTAR: I wish I was that cunning in the
14:23:20 14 use of
the language to use it at a tool. As a prosecutor I
14:23:26 15 use
facts as a tool. I use evidence as a tool. And
14:23:29 16
sometimes my language may be limited and I apologize to the
14:23:34 17 Court
and counsel for referring to terms as hearsay. I
14:23:36 18 guess
I should have referred to them as the stuff that was
14:23:39 19 told
to the officer prior to them being arrested every time
14:23:42 20 I
refer to that type of a term, because I guess that's the
14:23:45 21 only
way I can refer to it is -- I mean, I guess could be
14:23:49 22 for
formal -- could be the statements by Anamarria Boustred
14:23:54 23 made
to Deputy McConnell and paperwork to Deputy McConnell
14:23:58 24 and
the police reports gathered by Deputy McConnell, and I
14:24:01 25 could
use those words every time and maybe I should be
14:24:05 26 using
all of those words every time as opposed to using
524
14:24:09 1 the
words that he's been using calling it hearsay and
14:24:12 2
objecting, objecting, objecting. Hearsay, hearsay. And I
14:24:16 3 guess
it's my fault for falling into the trap of the
14:24:19 4
hearsay objection.
14:24:21
5 MR. GUY-SMITH: Your Honor --
14:24:22
6 THE COURT: Well, it's not that. All right. I'm
14:24:24 7 ready
to rule on this. Okay. Your motion for mistrial's
14:24:29 8
denied, Mr. Guy-Smith. Mr. Drottar is at times not the
14:24:36 9 most
articulate lawyer. I have had him in my Court many
14:24:38 10
times. He's not a person, a lawyer or anybody else that
14:24:46 11
proceed by way of chicanery or some device here. His use
14:24:52 12 of
the word "hearsay" is clearly misplaced here. These are
14:24:57 13
nonhearsay statements and the Court has so ruled for the
14:25:00 14
purposes of this hearing.
14:25:01
15 Counsel has argued with me they are indeed
14:25:04 16
otherwise hearsay statements. I've ruled they are not for
14:25:08 17 the
purposes of this trial. And they're given to the jury
14:25:11 18 with
limited instructions, with limitation instructions and
14:25:15 19 the
jury will be so instructed.
14:25:18
20 With regard to sanctions against Mr. Drottar, I
14:25:21 21
don't find any basis for that as I've indicated while he
14:25:24 22 may
not be at times the most articulate and in terms of his
14:25:30 23 use of
these terms, perhaps as misplaced. Clearly those do
14:25:37 24 not
amount to, in the Court's view, any kind of devious
14:25:41 25
attempt to in any way put before this jury evidence that
14:25:45 26
this Court would otherwise not allow.
525
14:25:49
1 So those issues have been been dealt with. I
14:25:52 2 want
to move to the specific issue here. All right.
14:25:56
3 MR. GUY-SMITH: My intent was as follows: And I
14:25:59 4
understand the Court's ruling. I, quite frankly, find it
14:26:03 5
shocking that a District Attorney practicing for ten years
14:26:07 6
does not know what hearsay is and uses it in ill-advised
14:26:11 7
manner in the fashion that he's suggesting. I found what
14:26:14 8 he
says to be, quite frankly, absurd from the standpoint of
14:26:20 9
this is evidence. Evidence is what we use. This is a nuts
14:26:25 10 and
bolts of our profession.
14:26:28
11 THE COURT: Okay, Mr. Guy-Smith.
14:26:30
12 MR. GUY-SMITH: The man has been doing it for ten
14:26:32 13 years;
however, it was my intention, because I do not seek
14:26:38 14
necessarily to elicit these statements made, I said topics.
14:26:45 15 My
question to Sergeant Christey was topics. And my
14:26:49 16
question was: Did he speak to you about topics concerning
14:26:56 17
custody, orders, and what happened on his way back home.
14:27:04 18 And
that was what I was going to ask her. She would say
14:27:07 19 either
yeah or nay. I was not planning on engaging in
14:27:13 20
further conversation with "what did you say specifically?
14:27:17 21 What
did he say specifically?" In each and every one of
14:27:22 22 those
situations.
14:27:22
23 THE COURT: No, I understand that.
14:27:23
24 MR. GUY-SMITH: Then I was going to ask her
14:27:24 25
whether or not that conversation contributed to her
14:27:30 26
decisions with regard to the investigation and ultimately
526
14:27:35 1
ultimate charging decision in this particular case. Pretty
14:27:38 2
clean. Pretty simple. Pretty straightforward.
14:27:42
3 THE COURT: Not a charging decision. That's not
14:27:45 4 her
prerogative. That's the District Attorney's
14:27:46 5
prerogative. You mean that in the sense of arresting?
14:27:50
6 MR. GUY-SMITH: Correct.
14:27:51
7 THE COURT: So that's what you want to do?
14:27:53
8 MR. GUY-SMITH: That's what I want to do.
14:27:54
9 THE COURT: You know, I can't see that that would
14:27:58 10
make any difference. I think Mr. Drottar's correct from
14:28:01 11 the
standpoint that either of these offenses have either
14:28:06 12 been
committed or not at that point. I cannot see that
14:28:12 13 that's
going to in any way affect what goes on here in
14:28:16 14 terms
of the charges that this jury has to resolve.
14:28:20
15 MR. GUY-SMITH: Well, you see the thing is this:
14:28:22 16
It's interesting what is being done here in terms of
14:28:26 17
editing and non-editing in terms of what's in the officer's
14:28:30 18
mind. The officer, until the point in time that she makes
14:28:33 19 a
determination to arrest this individual, is engaged in a
14:28:38 20
process of listening to facts, observing facts and trying
14:28:45 21 to
determine what is the appropriate action with regard to
14:28:48 22 a
particular individual and this particular situation with
14:28:51 23 regard
to Mr. Boustred.
14:28:52
24 As I said to you before, and I know that you have
14:28:55 25 been
in this situation, because I know I have been in this
14:28:58 26
situation many times. Excuse me, I don't want to
527
14:29:02 1
exaggerate. At times.
14:29:04
2 THE COURT: At times.
14:29:05
3 MR. GUY-SMITH: At times. Police officers have
14:29:06 4 in
fact seen a crime or what they believed to be criminal
14:29:10 5
activity committed. And based upon a whole community of
 14:29:17
6 events or circumstances they make a determination that they
14:29:21 7 are
not going to charge or arrest a person for that
14:29:23 8
activity based upon their determination of intent.
14:29:28
9 Let us take for example in our case right here
14:29:31 10 what
we have here is we have an officer or a series of
14:29:34 11
officers who have seen a series of orders. And what has
14:29:38 12
occurred so far is we now made the determination,
14:29:43 13
determination in the absence of any information from
14:29:46 14 Mr.
Boustred, that he is in violation of those orders.
14:29:51
15 Well, perhaps he's not in violation of those
14:29:53 16
orders. And perhaps if the officer was aware of the fact
14:29:57 17
that he was not in violation of those orders, the officer
14:29:59 18 may
have taken a different position as to any one of the
14:30:02 19
charges for which he is charged because you recall he's not
14:30:06 20 only
charged with assaulting a police officer and resisting
14:30:10 21
arrest, but evading and child endangerment. Perhaps that
14:30:14 22 fits
into the equation. Perhaps it doesn't. That is the
14:30:18 23
question I can't answer, Your Honor, because I haven't had
14:30:20 24 . a chance to ask the question
14:30:21 25
THE COURT: But -- well, let's take your example,
14:30:23 26
though, Mr. Guy-Smith. And in the extreme. Let's say the
528
14:30:26 1
officer said, no, don't arrest him, and we're sending this
14:30:30 2
report, et cetera, to the DA's office. The DA's office
14:30:34 3 goes,
what's the matter with this Sergeant? We're going to
14:30:36 4 charge
this guy and they do. All right? Now, would it be
14:30:40 5
relevant that the Sergeant Christey made a decision not to
14:30:44 6 arrest
in the most extreme of -- in terms of your argument
14:30:51 7 that
would be then, what, something you'd want to elicit?
14:30:54 8
Absolutely not. There's no way that that is relevant in my
14:30:57 9 mind
because it's an officer's decision in terms of what
14:31:03 10 they
have in front of them and these particular charges
14:31:05 11 don't
have anything to do with her decision to arrest or
14:31:09 12 not.
14:31:09
13 MR. GUY-SMITH: Well, I take somewhat of a
14:31:11 14
different view.
14:31:12
15 THE COURT: I'm sure you do. You're a very good
14:31:15 16
advocate. But I can't see that there's any relevance to
14:31:20 17 this.
14:31:21
18 MR. GUY-SMITH: You know what, but, say, okay.
14:31:23 19 That's
a different issue. If what you're saying you find
14:31:25 20 no
relevance, then what I would do for the purposes of the
14:31:28 21
record, I will object. I have you're ruling. We will
14:31:32 22
proceed.
14:31:33
23 THE COURT: Okay. All right. There we go. And
14:31:35 24 so I
think that's it. I just don't --
14:31:39
25 MR. GUY-SMITH: But I think you're wrong.
14:31:40 26
THE COURT: I understand. I've been told that
529
14:31:41 1
before. That's not surprising probably to you.
14:31:44
2 MR. GUY-SMITH: I understand.
14:31:46 3
THE COURT: All right. So I find no relevance in
14:31:49 4
these statements that were made here in the garage to
14:31:55 5
Sergeant Christey. So we're not going to go into that and
14:31:56 6
the response by Sergeant Christey would be stricken. All
14:32:01 7
right. Such that the jury will --
14:32:02
8 MR. GUY-SMITH: Does that include the response
14:32:03 9 that
she made -- excuse me. Does that include the response
14:32:05 10 she
made on direct when he asked the question "Did you talk
14:32:10 11 to
her?" She said, "Yeah, he talked to me about the
14:32:13 12
custody issue" or did that one slip in? If that slips in,
14:32:16 13
then I get to talk about it.
14:32:18
14 THE COURT: Did you object at the time? I don't
14:32:20 15
remember.
14:32:21
16 MR. GUY-SMITH: No. I didn't object at the time
14:32:22 17
because I didn't object. Because I didn't object, doesn't
14:32:26 18
foreclose the fact -- that doesn't foreclose me from
14:32:29 19
evidentiary standpoint from now asking those questions
14:32:32 20
because in another situation you would say, well, I'm
14:32:35 21
sorry, Mr. Drottar, guess what, you shouldn't ask the
14:32:39 22
question did you have a conversation with the Appellant in
14:32:42 23
which he talked about custody issues because if he didn't
14:32:44 24
want to come in, you shouldn't ask your witness to get that
14:32:48 25
information. You've been in that situation before perhaps
14:32:51 26 and
occasional, oh, perhaps more carefully I know I have
530
14:32:56 1 asked
that sloppy questions before. I've been told by the
14:32:58 2 judge,
you know what, shouldn't ask the question,
14:33:01 3 Mr.
Guy-Smith. You ask the question, you got to live with
14:33:02 4 the
answer and you got to live with the ability to engage
14:33:05 5 in
the examination.
14:33:07
6 THE COURT: Yeah, but the shoe's on the other foot
14:33:10 7 now so
to speak. You want me to strike that answer, I
14:33:12 8 mean,
when there was no objection.
14:33:15
9 MR. GUY-SMITH: I'd rather you don't strike the
14:33:15 10
answer. I'd rather you let me not strike the answer you
14:33:19 11 just
gave now.
14:33:20
12 THE COURT: I know you want me to let you do that
14:33:22 13
based on the fact that he was asked but I'm not going to do
14:33:25 14 it.
He objected. The grounds are relevance and I find no
14:33:28 15
relevance at this point. I mean, if you would have
14:33:31 16
objected, then I would have said, yeah, I don't see how
14:33:33 17 it's
relevant either.
14:33:34
18 MR. GUY-SMITH: But I believe it's relevant.
14:33:37
19 THE COURT: I know you do.
14:33:41
20 MR. GUY-SMITH: He believed it's relevant;
14:33:41 21
otherwise, he wouldn't have asked the question.
14:33:43
22 THE COURT: I don't know.
14:33:43
23 MR. GUY-SMITH: Then we're in whole interesting
14:33:45 24 other
aspect how Mr. Drottar conducts his examinations so
14:33:50 25 be
it. Let's get the jury in.
14:33:51
26 THE COURT: That's a different question.
531
14:33:53
1 MR. GUY-SMITH: That is indeed a different
14:33:54 2
question.
The trial Court and Prosecution committed error by
allowing hearsay to enter the record regarding the officers intent and
by disallowing facts to enter the record that obviously affected
Appellants intent. Appellant’s conviction must be reversed.
C.3. Court Disallowing Testimony of Excessive Force During Arrest.
The Court strikes valid testimony of Appellant
regarding excessive force in the false arrest, this also relates to the
Court’s conspiracy to disallow Pitches Discovery on Deputy
Brozozowiski. After Appellant testifies to the truth, The Court orders
the jury out of the court room and threatens Appellant with Contempt
(Vol 5 P1066).
Vol 5 P1065:
Court Strikes Testimony of Excessive Force During Arrest:
11:25:15 17
Q After you finished your conversation with Deputy
11:25:18 18 Pool,
where did you go?
11:25:21 19
A Well, I was in the garage and another deputy came
11:25:27 20 in,
drove his knuckles into my neck cuffed my wrist with
11:25:33 21 his
bloody hand then they dragged me out of my garage.
11:25:36
22 MR. DROTTAR: Objection, Your Honor. No question
11:25:37 23
pending.
The Court proceeds to move the Jury out of the
courtroom and admonish Appellant for testifying to the truth. The Court
struck the Excessive Force During Arrest testimony so as to avoid Caljic
9.28 instructions and mislead the jury into the false belief that
petitioner resisted arrest. Note also The Court refusing to address the
issue regarding Deputy Pools lies on the stand and any discovery or
testimony by Deputy Brozoowski.
The
trial Court and Prosecution committed error and appellant’s conviction
must be reversed.
C.4. Further Refusal Of Court To Allow Relevant Evidence That
Specifically Relates To Intent, Yet Allowing Hearsay Against Appellant.
Again Defense specifically lays out the issue
regarding the TRO Appellant filed just prior to the events of this case
which relate directly to Appellant’s intent: Vol 5 P1009 L1 “MR.
GUY-SMITH: I think it has a critical bearing on what happens on the
10th. Part of the reason, part of the reason that I think it's
important apart from credibility it also deals with issues concerning
his intent because we have both specific as well as general intent”.
Vol 5 P1009 L11 - 09:44:49: “And one of the things
happening in this trial which I've been complaining about since the
outset is everything with regard to all of these issues, and by that I
mean the custody, the custody orders, the statements that were
allegedly made by Anamarria Boustred that came from McConnell ultimately
got to Christey which theoretically were used for the purposes of
influencing or in some other fashion affecting the officer's decision to
do what they did. How they did. When they did. Has all come in.
And whether or not they have come in for what I
believe to be clearly hearsay purpose, although I understand the Court
says has issued limiting instruction, which I think is, quite frankly,
ineffectual, quite frankly, not only because of the amount of time that
has been introduced, number of witnesses that have dealt with it and the
kind of information that it is. We're also once again in a position
where, where we intend to or attempt to introduce anything with regard
to self same issue. The precise issues. We're foreclosed. Absolutely
foreclosed. And we're foreclosed because it does not seem to be
relevant. I can't object strongly enough with regard to this
issue.”
The Courts Ruling: Vol 5 P1010 L9: 09:46:11 9 THE
COURT: Yeah, I just don't see the relevance.
What is particularly interesting is how THE COURT
determines that events occurring immediately prior to the events of this
case, the filing of the TRO which obviously directly relates to the case
not just from an intent basis but also from a Due Process basis and the
fact that the TRO dealt with the very issues of the case, an ex-wife
making false police calls, are ruled as not relevant, however THE COURT
considers that events some six months later when Santa Cruz Authorities
issued a false warrant for Appellants arrest due to four new false
charges, was somehow relevant. However, in the event six months later,
the Court refuses to let any facts relating to the four new false
charges that were dropped and for which Appellant was again falsely
arrested, to enter the record. The Court only allows the Prosecution to
introduce elements which could be construed as detrimental and miss
characterization of the Appellant to enter the record, literally
striking testimony by Appellant that in any way explained facts and the
Appellants position or intent.
The Court also refused to allow any information
regarding the Void Kelly Order, which not only forms the underlying
legal basis to this case and the Placer Case, but also directly impacts
Appellant’s intent. The court also disallowed any information relating
to the repeated setup attempts by appellant’s ex-wife and her lover, yet
the Court allowed flat out lies made by Appellant’s ex-wife to be
submitted into the record “for information purposes” (P1021:L10).
Vol 5 P1018:L24:
“MR. GUY-SMITH: I
understand. No March 9th. No testimony with regard to him
filing of the TRO.
THE COURT: But I
will listen to his testimony. And at the end of that, I’m willing to
entertain a further offer to - - so to speak - - at this point I thing
that’s what be by - - Mr. Guy-Smith as to any other testimony you
believe is relevant concerning his actions that day? Yes, Mr. Drottar,
go ahead next.
Another example of the Court’s rulings:
Vol 5 P1021:
10:03:09
20 MR. GUY-SMITH: Well, I can't argue my opening
10:03:12 21
statement?
10:03:12
22 THE COURT: I agree with that.
Vol 5 P1022L17:
10:03:54 11
MR. GUY-SMITH: He was relevant enough to have
10:03:56 12
information concerning the fact that Mr. Boustred's ex-wife
10:04:02 13
indicated that he was popped in the nose. Relevant enough
10:04:06 14 for
those purposes.
10:04:06 15
THE COURT: The Court ruled that, ruled on that
10:04:08 16
because that was a factor that the officers who have to act
10:04:14 17 in the
lawful performance of their duties had that piece of
10:04:16 18
information when they did act.
10:04:19
19 MR. GUY-SMITH: The police can have all the
10:04:21 20
information in the world and lawful performance in order to
10:04:24 21
establish they're moving forward. And they can still
10:04:28 22
violate the law. And as you know as well as I do on
10:04:30 23
occasion do. And the fact that they have the information
10:04:35 24 or not
is not once again critical to the issue and the
10:04:38 25
relevant whether or not they're operating lawful
10:04:41 26
performance of their duties.
1023
10:04:41
1 THE COURT: I'm not going to rehash that.
The trial Court and Prosecution committed error and
appellant’s conviction must be reversed and the case dismissed.
Prior to the events of this case Appellant filed a
Temporary Restraining Order in the Santa Cruz Superior Court seeking the
courts protection from his ex-wife who had resumed making false police
calls, and at that very moment was engaged in making the false police
call that culminated in the Sheriffs shooting at Appellant and his
children and the events of this case.
Due Process dictates that matters be heard in
logical and filed sequence, as a consequence the Court erred in refusing
to hear the TRO Appellant filed on March 10, 2003 before the events of
this case. Had the court allowed the TRO hearing, it would be evident
that Appellant followed the law and that his ex-wife was again
attempting to fraudulently employ state agencies to position herself for
divorce. To this day the Santa Cruz Superior Court refuses to hear the
TRO Appellant filed before the events of this case.
The trial Court and Prosecution committed error and
appellant’s conviction must be reversed and the case dismissed.
On June 7, 2004 Defense submitted a “Notice of
Motion and Motion to Produce Documents for inspection pursuant to
evidence code section 1043” (CT400), discovery on Deputy Brozozwiski
was specifically requested. In the hearing on June 30, 2004, The Court
approved discovery only on MacDonald, Pool, Christie, and McConnell.
The Court did not allow discovery on Deputy Brzozowski.
The trial court abused its discretion when it
disallowed discovery on the Deputy who assaulted Appellant during the
false arrest. Had this information been made available Defense could
show the violent pattern of practice of Deputy Brzozowski and Appellant
would not have been found guilty of resisting arrest. The trial Court
and Prosecution committed error and appellant’s conviction must be
reversed.
F. Court Acted With Extreme Bias Allowing Hearsay And Irrelevant
Evidence By Prosecutions Witnesses And Ignored Valid Objections By
Defense. The Court Even Litigated For The Prosecution.
The trial court abused its discretion when it
disallowed lawful objections by Defense then allowed the submission of
irrelevant hearsay by the Prosecution. The transcript is full of such
examples of extreme bias, some extracts are show here to illustrate:
++Vol 5 P :
Hearsay objections on the record
16:02:57
2 MR. GUY-SMITH: I'm very concerned in the event
16:02:58 3 there
are convictions and there is an appeal that there is
16:03:02 4 no
waiver with regard to the issues that I have raised
16:03:07 5
concerning the hearsay relevance issues. I don't believe
16:03:11 6 that
there is but I want to make double sure that it is
16:03:18 7
understood that my objection is strenuous and repeated;
16:03:21 8 that
I'm sure the Court is tired of hearing of them. Both
16:03:27 9
state as well as federal constitutional grounds. I say
16:03:30 10 this
specifically because I am concerned in this day in age
16:03:35 11 based
upon the Court of appeals decisions that I have seen
16:03:40 12 if
it's not acknowledged, that the issues are preserved on
16:03:42 13 both
and state and federal ground.
16:03:44
14 THE COURT: They're waived.
16:03:47
15 MR. GUY-SMITH: They are waived and I want to
16:03:47 16 make
sure that it is understood that I am asserting both
16:03:48 17 state
and federal ground in the extent I have to cite the
16:03:53 18
amendments to the constitution, I believe I have done so.
16:03:58
19 THE COURT: I think you have. But I agree with
16:04:00 20 you
that there's caution here. And so your objection again
16:04:05 21 is on
the record and I think you've done all you can from
16:04:09 22 the
Court's perspective of preserving that.
16:04:13
23 MR. GUY-SMITH: Very well. I have that concern.
16:04:15
24 THE COURT: Okay.
Vol 2 P428 The
Court allowing hearsay:
L 24: Guy-Smith: For
the purposes of the record, I’d object on the grounds not only
hearsay, double hearsay.
P429:
L1: THE COURT: I
understand. So, again, it’s for limited purposes, laides and
gentlemen. So I’ll overrule the objection but you can only use
it to further explain perhaps further explain the actions of Sergeant
Christey. Go ahead.
Vol 2 P422: The
Court disallowing speaking objections
P442:L11: THE COURT:
No speaking objections. You object?
Vol 2 P363: The
Court allowing hearsay on behalf of prosecution but limiting Defense:
P363 L14: THE
COURT:… All right? So to that limited extent seems to me reference can
be made by Deputy McConnel to the Dodd report and attachments.
MR. DROTTAR:
Basically, Your Honor, like the date of the incident; that the fact that
is was consistent. I’m not –
MR. GUY SMITH: I’m
sorry. Then we’re going to have to litigate the incident. Then
we’re going to have to litigate the incident.
THE COURT: No.
MR. GUY-SMITH: Yeah,
sure, we are. For him to say it’s consistent is predictate upon
hearsay and conclusions that are made by someone else. Going far
[P364:L1] a field. I have no opportunity for cross-examination.
THE COURT: No. I
understand. You can make that objection, Mr. Guy-Smith, but this is for
a limited purpose.
L15….MR. GUYSMITH: …
I objected because of the - - as I said before, mountains of
hearsay that were coming in.
Vol 2 P393: The
Court allowing Submission of hearsay:
 L17:
State Witness MCCONNEL – A: Well, the occurrence of a child custody
exchange that from two weeks prior in Deputy Dodd’s report appeared to
be similar somewhat to this circumstances that I was dealing with in
that Mr. Boustred appeared to have become angry.
MR. GUY SMITH: I’m
going to object at this point.
THE COURT: Okay, And
your offer is for limited purpose again?
MR. DROTTAR: Yes,
Your Honor.
THE COURT: All
right. Objection’ noted. Overruled. Remember, ladies and
gentlemen, all of this so far is for a limited purpose of determining
what action, if any, Deputy McConnel’s going to take after receiving
this information. It’s not for the truth of the matter. It’s not to be
used by you in any way to say Mr. Boustred’s a bad person or that, you
know, anybody’s at fault in the, you know, child custody situation.
It’s simply offered
for the purpose of having you know what, if you will, information Deputy
McConnel had when she began to do what she did that day. All right.
And so with that limitation, go ahead.
MR GUY-SMITH: If I
might, Your Honor, since I know you don’t want any speaking objections.
THE COURT: Sure.
MR. GUY-SMITH: If we
can approach the sidebar with the assistance of the reporter.
THE COURT: Sure.
(Discussion held
at bench not reported)
THE COURT: All
right. And so you had completed your answer; is that right?
THE WITNESS: I
don’t remember.
THE COURT: Fair
enough. Okay. So the objection is overruled. She answered.
And no go ahead, Mr.
Drottar.
MR DROTTAR: Yes.
Thank you, Your Honor.
Deputy McConnel raises a very interesting fact
“Well, the occurrence of a child custody exchange that from two weeks
prior in Deputy Dodd’s report appeared to be similar somewhat to this
circumstances that I was dealing with”. The Sheriffs were aware of the
fact that Appellants’ ex-wife was trying to employ the sheriffs for
divorce positioning, they were aware that these matters were being
adjudicated in court. Why then did the sheriffs act in the way they
did, why did the sheriffs literally shoot at Appellant and the children?
Vol 2 P428 – The
Court again allowing submission double hearsay by Prosecution:
Christey A: Deputy
McConnel said that Anna Boustred described Clyde as a tall thin guy;
said she had just seen him within the last five minuets at the
courthouse here in Santa Cruz. And that she attempted to make contact
and did not make contact with Clive.
Q: What about the
children? Did she have any information on the children?
A: She did not think
the kids were with Mr. Boustred in the car.
Q: That’s the
information you had from Deputy McConnel?
MR. GUY-SMITH: For
the purposes of the record, I’d object on the grounds not only
hearsay, double hearsay the - -
THE COURT: I
understand. So, again, it’s for limited purpose, ladies and gentlemen.
So I’ll overrule the objection but you can only use it to further
explain perhaps further explain the actions of Sergeant Christey.
Go ahead.
Vol 4 P826: Court
bias regarding objections by defense and allowing submission of hearsay
by prosecution.
21
Q What happened when you met with Sergeant 11:35:11
22
Christey? 11:35:13
23
A She had explained to me that she -- 11:35:13
24 MR. GUY-SMITH: Objection. Hearsay.
11:35:15
25 THE COURT: It would be.
11:35:17
26 MR. DROTTAR: Your Honor, it's not offered for
11:35:19
826
1 the
truth of the matter asserted but based on what this 11:35:20
2 officer
knew regarding this incident and what it is he was 11:35:23
3
investigating and the following conduct. 11:35:27
4 THE COURT: All right.
11:35:31
5 MR. GUY-SMITH: Objection relevance and it also
11:35:31
6
violates the 4th, 5th, 6th Amendment to the United States.
11:35:36
7 MR. DROTTAR: Objection. Speaking objection,
11:35:39
8 Your
Honor. 11:35:40
9 MR. GUY-SMITH: To the constitution.
11:35:41
10 THE COURT: Mr. Guy-Smith, I said no speaking
11:35:43
11
objections.
11:35:45
12 MR. GUY-SMITH: I didn't mean that as a speaking
11:35:46
13
objection. 11:35:47
14 THE COURT: I understand the basis for it. Okay.
11:35:48
15 So
the objection's overruled. This will be for a limited 11:35:49
16
purpose, ladies and gentlemen. You're so instructed before 11:35:53
17 and
again consider it only for limited purpose the Court 11:35:55
18
instructs you. Go ahead. 11:36:00
19 THE WITNESS: I spoke with Sergeant Christey who
11:36:00
20
explained to me that she had gone to this residence and in 11:36:03
21 an
attempt to do a welfare check on two children. 11:36:09
22 MR. GUY-SMITH: Excuse me, Your Honor. For the
11:36:12
23
purposes of the record, and the record only -- 11:36:14
24 THE COURT: Continuing objection?
11:36:15
25 MR. GUY-SMITH: Thank you very much, because I do
11:36:17
26 not
wish to waive any -- 11:36:18
827
1
THE COURT: Yes, the record will show continuing
11:36:19
2
objection, Mr. Guy-Smith. Go ahead.
11:36:23
Vol 5 P1108: Yet
another example of The Court ignoring valid objections by Defense:
13:53:16 11
MR. GUY-SMITH: Excuse me. And I would move to
13:53:18 12
strike it and I would ask for an admonition with regard to
13:53:23 13
arguing with Mr. Boustred.
13:53:26
14 THE COURT: Well --
13:53:28
15 MR. GUY-SMITH: He can engage in effective
13:53:29 16
examination without arguing with him.
13:53:31
17 THE COURT: Well --
13:53:34
18 MR. DROTTAR: Objection, Your Honor. Speaking
13:53:34 19
objections.
13:53:35
20 THE COURT: I understand. Let's just move ahead
13:53:36 21
here. I made my ruling. Let's go ahead, ask the next
13:53:40 22
question.
Vol 4 842: The
Court engaged in litigating for prosecution:
18
Q After receiving that information, did you observe 11:55:46
19
anything else? Did you hear anything or see anything? 11:55:49
20 MR. GUY-SMITH: Objection. Compound.
11:55:52
21 THE COURT: It is. We can start with one or the
11:55:54
22
other here.
11:55:57
23 BY MR.
DROTTAR: 11:55:57
24
Q Did you observe anything else? 11:56:01
25
A I did not observe visually, no. 11:56:02
26
Q Were your senses stimulated in any way by 11:56:05
842
1
anything that was relevant? 11:56:09
2 THE COURT: Okay. Mr. Drottar --
11:56:12
3 THE WITNESS: I'm sorry, Your Honor.
11:56:14
4 THE COURT: All right. Let's move it ahead here.
11:56:15
5 Did
you hear anything? 11:56:20
6 THE WITNESS: Yes, sir.
11:56:20
7 THE COURT: There we go. All right. Let's --
11:56:20
8 MR. DROTTAR: I wouldn't ask leading questions,
11:56:22
9 Your
Honor. 11:56:25
10 THE COURT: I understand you're not supposed to.
11:56:25
11 C'mon,
let's go. & | 
