Offer of proof regarding Dennis Fung's testimony

📄 Offer of proof regarding Dennis Fung's testimony — Wednesday, July 6, 1994

Address:

C:\DEPT103\PRELIMINARY\1994\JUL\6\OFFER-OF-PROOF-REGARDING-DENNI.DOC

TRIAL

▲ Day 4 of 6

◀ Direct examination of Cathy Randa Direct examination of Dennis Fung ▶

Date: Wednesday, July 6, 1994 • Lines: 11

The prosecution asked the defense to explain why Dennis Fung's testimony was relevant, arguing that the testimony previously described would add nothing material. The defense said Fung would show that officers were collecting evidence at the premises before obtaining a warrant, and Judge Kennedy-Powell ruled that the testimony could be generally relevant and allowed him to be called.

# 1 MR. UELMEN:

We would like to call Mr. Fung.

# 2 THE COURT:

I assume he has arrived.

# 3 MS. CLARK:

Yes, he has, your Honor. As to this witness, though, we would renew our request, under penal code section 866, for an offer of proof. I believe if all he is going to be offered for is what was earlier indicated by counsel, there is nothing relevant in his testimony.

# 4 THE COURT:

I believe 866 relates to presenting an affirmative defense at a preliminary hearing. It does not apply, I believe, to a 1538.5 motion affirmative evidence. But what is the nature of the testimony?

# 5 MR. UELMEN:

To show the nature of the investigative activity that was taking place at the premises and at what time that activity was taking place.

# 6 THE COURT:

And how does that relate to the issues in this case, do you believe?

# 7 MR. UELMEN:

Well, your Honor, essentially, our position is the officers were conducting a search of the premises prior to the time they had obtained a warrant.

KEY QUOTE

# 8 THE COURT:

All right. Well, we will just -- I mean, I don't think that is really totally in issue although I think their motivation is in issue, apparently. Are you saying somehow Mr. Fung is going to -- his testimony is somehow going to bear upon the existence or nonexistence of exigent circumstances at the time they entered the location?

# 9 MR. UELMEN:

No, your honor. It is going to relate to the purpose of the actual invasion of the premises, which was to collect evidence of criminal activity, and to describe the nature of the activity he was engaged in in terms of collecting evidence.

KEY QUOTE

# 10 THE COURT:

Well, there was evidence elicited from detective Vannatter with regard to calling criminalists, waiting for criminalists to arrive and something about a presumptive test done on, I think it was, the stain on the bronco. So it seems to me it might generally be relevant to the issues; so I will allow you to call him.

# 11 MR. UELMEN:

Thank you.

Temperature

procedural

Key Quotes (3)

Gerald Uelmen

Well, your Honor, essentially, our position is the officers were conducting a search of the premises prior to the time they had obtained a warrant.

Uelmen stated the defense theory supporting Fung's proposed testimony: police had begun an unlawful warrantless search.

Gerald Uelmen

It is going to relate to the purpose of the actual invasion of the premises, which was to collect evidence of criminal activity, and to describe the nature of the activity he was engaged in in terms of collecting evidence.

Uelmen explained that Fung would help establish the purpose and nature of the officers' evidence-collection activity.

Kathleen Kennedy-Powell

So it seems to me it might generally be relevant to the issues; so I will allow you to call him.

The judge found sufficient relevance and permitted the defense to call Fung.

Evidence (3)

Informal

The search warrant that the defense alleged had not yet been obtained when officers began searching the premises.

discussed

Informal

The Bronco and a stain on it that reportedly underwent a presumptive test while criminalists were at the scene.

discussed

Informal

Evidence collected by Dennis Fung during investigative activity at the premises before or around the time the warrant was obtained.

discussed

Notable Exchanges (2)

Marcia Clark•Kathleen Kennedy-Powell•Gerald Uelmen

Clark requested an offer of proof and argued that Fung's anticipated testimony was irrelevant; Kennedy-Powell questioned Uelmen about its connection to the suppression issues and ultimately allowed Fung to testify.

procedural

Kathleen Kennedy-Powell•Gerald Uelmen

The judge tested whether Fung's testimony concerned exigent circumstances; Uelmen clarified that it instead concerned whether the officers' entry and activity were intended to collect evidence before a warrant was obtained.

strategic

Objections

None recorded

Proceeding 9130 • 11 lines

Preliminary Trial

Department 103