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State of California v. Johnny Miles
Hearing: Evidence Code 1108
01/06/99


SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN BERNARDINO
CASE NO. FSB 09438

THE PEOPLE OF THE STATE OF CALIFORNIA
VS. JOHNNY DUANE MILES

EVIDENCE CODE 1108 HEARING
JANUARY 6TH, 1999

 

THE COURT: All right. I believe the last time you were going to be -- you thought you'd be calling a witness on --concerning the live line-up, or is that --

MR. CANTY: Actually, I have that witness scheduled for tomorrow. I thought we were doing that tomorrow, and I do have a witness here on the 1108 motion.

THE COURT: Oh, I see. Okay.

MR. CANTY: Today, if that's agreeable.

THE COURT: All right.

MR. CANTY: Just by way of introduction. The motion which I filed to exclude the evidence, of course, discusses the five factors that were set forth in the Harris case as being those to be considered in determining the admissibility of ll08-type evidence, basically the 352 standards. And the last item is probative value, and the purpose of this witness is to address the question of probative value, which is one of the elements of the Harris opinion. And the witness is Brent Turvey, if you'd come forward?

BRENT E. TURVEY, called as a witness by the Defendant, being first duly sworn, testified as follows:

THE CLERK: You do solemnly swear or affirm the testimony you are about to give in the matter now pending before this court, shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

THE CLERK: Thank you. Please be seated. Please state your full name for the record, and then spell your last name.

THE WITNESS: Brent E. Turvey. T-U-R-V-E-Y.

 

-DIRECT EXAMINATION-

BY MR. CANTY:

Q Mr. Turvey, what is your occupation, please?

A I am a Criminal Profiler and Forensic Scientist for a company called Knowledge Solutions.

Q And describe generally what you do?

A I often work for law enforcement and attorney clients throughout the country consulting on issues typically involving violent or serial predatory crime.

Q What is criminal profiling?

A Criminal profiling is essentially an investigative process that involves assessing offender behavior within a crime scene to help infer something about that offender in order to better investigate them or to better understand the nature of why they're doing what it is that they're doing.

Q And would you describe the training, and experiences, and education you've had with regard to this field?

A I believe most of the education and training I've had, most of my formal education has bearing on what I do now from -- I have a Bachelor's of Science that I received in history. I then went on to receive a second Bachelor's of Science in psychology. And then I went on to receive a Master's of Science in Forensic Science.

Q And then after psychology and forensic science, did you study under a person who is involved in criminalistics?

A Yes, I did.

Q And who was that?

A I studied under both Dr. Henry Lee and Dr. Bob Gaensslen at the University of New Haven in Connecticut.

Q And have you also taken a number of courses or classes relating to police investigation and criminal profiling?

A As a part of that curriculum, yes. And then additional training beyond that in the form of seminars and working with individuals who do the work.

Q Have you been employed in the past by various police agencies with regard to assisting them in the investigation of serial crimes?

A Yes, I have.

Q And approximately how many?

A Oh, it's more than 10, more than 10 serial involvements with law enforcement.

Q Is criminal profiling a technique which is used widely now in the field of police investigation with regard to serial crime?

A Yes, it is.

Q Does the F.B.I. employ serial -- or, I'm sorry, Forensic Criminal Profilers?

A They employ Criminal Profilers, yes.

Q And are there state agencies that do as well?

A Yes, there are.

Q Such as?

A In the State of California, the D.O.J., Department of Justice, employs -- used to employ three, now employs two full-time Criminal Profilers, I believe.

Q And what does a Criminal Profiler do as a part of assisting in an investigation?

A One of the main roles that a Profiler has is to help assist in evaluating the evidentiary potential of behavior and evaluating how resources within the investigation are applied.

You develop -- you start with a universal suspect pool, and the inferences that you gain by virtue of analyzing the offender's behavior help you move to a more unique, more unique, but not individuating suspect pool.

Q In doing profiling, do you consider things such as what are called M.O. factors or modus operandi?

A Yes, I do.

Q And-do you also consider what is called signature behaviors?

A Yes, I do.

Q Is there a difference between those two things; modus operandi and signature?

A Yes, there is.

Q What's the difference?

A By and large the great difference is modus operandi behaviors are all those behaviors that are committed by the offender before, during, and after an offense that help -- that are required in Order to commit the offense.

For example, an example would be binding a victim so they wouldn't be able to get away, or covering their face so they wouldn't, so that their identity might be concealed. Those are M.O. behaviors.

Now, signature has two parts; one is signature behavior, and the other is signature aspect. The signature behaviors are those behaviors that an offender commits during an offense that they did not have to do to fulfill a psychological or emotional need on the part of the offender, and the signature aspect is that emotional need.

For example, an offender who engages in a massive amount of victim punishment and damage, that's the behavior. The beating of the victim severely, that's behavior. The signature aspect that's evidenced by that behavior is something like anger. So those are just examples, and that's how they differ.

Q Have you had occasion to study any particular violent sex offender cases?

A Yes, I have.

Q And what work have you done?

A I've been studying both independently, and then formally through university study, violent predatory -- sexual predator behavior since 1990, at least. For the first two years as an undergraduate, essentially in an unstructured way, and then at the University setting with, with my psychological -- my psychology professors in a structured environments.

I studied offenders in population, and studying the literature, doing interviews in prison, and that sort of thing, in person, as well as studying after that, going on to apply the study of physical evidence to that same, to that same field.

Q Are you a member of the California Homicide Investigators Association?

A Yes, I am.

Q And are you also a member or affiliated with the American Academy of Forensic Science?

A At this moment, I am what is called an applicant affiliant. I put in my application, and it will be approved in February, hopefully.

Q With regard to this particular case, were you given some materials to review?

A Yes, I was.

Q And as a result of reviewing those materials, did you become familiar with three rape cases charged against Mr. Miles in this County, to wit, the murder of Nancy Willem in Rialto, the rape of Christine Castellanos in Victorville, and the robbery and rape involving a Mr. Osburn and Carol Davis in San Bernardino?

A Yes, I did.

Q And in that regard, did you review the police reports associated with those crimes?

A I did, yes.

Q And did you also look at photographs of the crime scenes that were supplied to you?

A Yes, I did.

Q Did you also view a videotape of the crime scene taken by the police at, the time of the Willem murder?

A Yes, I did.

Q Did you also visit the three crime scenes in San Bernardino County?

A Yes, I did.

Q And with regard to another offense alleged against Mr. Miles as having been committed in Torrance in June of 1992 against Mr. Manuelson and Mr. Honigsfeld, did you review that material?

A I believe it was a male and a female.

Q I'm sorry, Miss Manuelson and Mr. Honigsfeld?

A Yes, I did.

Q And did you review the police reports that were supplied to you in that matter?

A Yes, I did.

Q And did I request you to engage in a comparison, in a profiling sense, of the San Bernardino offenses with the Torrance offense?

A I believe you asked me to compare the M.O. and signature behavior across the offenses, yes.

Q And did you compare the murder case involving Nancy Willem with the Torrance matter from the point of view of M.O. and signature?

A Yes, I did.

Q And what observations did you make in that comparison?

A In which specific case, or just in general?

Q As to Willem versus Torrance.

A The -- both the M.O. behavior and the signature behaviors were completely different, as well as the signature aspects themselves. The emotional needs being satisfied were different as well.

Q When you talk about emotional aspects and signature behavior, are there certain kinds of emotional or psychological attributes that are attributed to various kinds of rapists?

A Yes, there are, in general. These are, again, not exclusive categories, -but there are.

Q What are those?

A They were established by a man by the name of A. Nicholas Groth, and he wrote -- he published a book called "Men Who Rape", and in that book he established the foundation for what are referred to commonly as rapists' motivational topologies in the literature, and they were adopted by essentially the profiling community to help understand motivational themes. And they include things like anger, power reassurance, power assertive, and sadistic.

Q Now, with regard to the Willem murder case, based upon your observations and examination of that case, are you able to generally fit that case into one of the categories you just described?

A I think it would be better to say that there is behavior that evidences one of those motivational categories, yes.

Q What is that?

A The behavior that we have to analyze in that case, which is the use of extremely brutal, violent, immediate, physical force to the victim suggests a retaliatory offender, or retaliatory motivation.

Q Is that associated with anger?

A Yes, it is.

Q Does that profile, or does that aspect also appear in the Torrance case?

A No, it does not.

Q What do you see in the Torrance case?

A The Torrance case is a more assertive crime. I see what we call a power assertive offender. Someone who is fulfilling inadequate needs by evidencing very assertive, very macho behaviors. Very aggressive, very vitriolic. Very -- not quite angry with the victim, but sort of contemptuous, using very foul language. Not very pleasant. Making all kinds of threats. That sort of thing.

Q And you see that as a different kind of rapist than the person who brutally strangles, and beats, and kills the victim?

A Yes. Well, what I would say that those two -- I would say that there's an absence of anger-oriented behavior evidenced by brutal physical violence, in the Torrance case.

Q Are the, the sexual behaviors materially different?

A Yes, they are.

Q In what way?

A Well, in the Willem case, we're not really able to establish with any sort of certainty what the sexual behaviors are, or what sequence they occurred in. And in the Torrance case, we have multiple victim involvement, and we have a very --we are able to establish a sequence that is -- again we're not able to establish anything with certainty from the Willem case.

Q And the sequence in the Torrance case involves a sexual act being forced between a male and a female?

A That's correct. The very first encounter is the offender forces the female to fellate the male at gun point. And then, after monitoring this, or watching this for some while, and being gratified by it, then proceeds to vaginally rape the female from behind.

Q Now, with regard to the Castellanos and Davis rape cases in San Bernardino, do you see differences between them and the Torrance case?

A Yes, I do.

Q What differences do you see?

A Well, again, the Torrance case evidences a very vitriolic offender, someone who is very interested in humiliating the victim. Using foul language, making all kinds of verbal threats to the life of the victims. In fact, when they leave, when this offender leaves, it's accounted by the victim that the offender threatens her life and the male's life if they contact the police.

In the Victorville and the San Bernardino case, you have what we would call a convergence of power reassurance behaviors that are being evidenced. The offender is very polite, makes -- is very complimentary to the victims during the sexual acts. Very complimentary about how she is performing. Very concerned with his own performance. Asking how he's doing. And at one point in the -- at the end of one of the events, he actually bargains with the victim. The victim begs that he pull up her garment and he actually does it. Very polite. Very polite. Described as very calm and polite, and very non-aggressive verbal behavior according to the victim accounts.

Q And what is the psychological need that you see as evidenced by those behaviors?

A Again, that's reassurance. The psychological need is a need to be, a need to be involved in a non- -- almost a non-rape. The offender that's doing this doesn't really believe that they're a rapist. They believe that what they're doing is almost pleasurable to the victim. It's almost like an extension of a date. He's not really -- he doesn't believe he's actually doing the victim any permanent harm. Whereas in the Torrance case, the response that the offender seems to want is fear, and total submission without any bargaining, without any sense of the victim being a person.

Q You mention in connection with the Torrance case that the perpetrator threatened them with harm if they called the police, and threatened to return and that sort of thing. Is there -- is that behavior, does that fit into a category of anything that you study?

A Again, that's an assertive behavior. It's a need to -- it's what I would call just a verbal threat or control oriented threat. That's all we call it.

Q If you compared that way of, say, departing the scene with the manner of departing the scene in the other two cases, are there any differences?

A Yes, there are. In the, in the Willem case in Rialto, the offender -- we can't really establish for sure what the departure behavior was. We do know that the victim was killed at some point. And that the offender wrote a note, left it on top of the body, presumably when the offense was over. That's their justification, sort of a justification for what they've done, saying -- the note said, "Wake up government. Feed the poor." It's almost a justification for what they had done, explaining to those investigators who would find the body why essentially this victim had died. Giving a kind of rationalization. And you don't see that in any of the other cases. You don't see a need to explain that behavior in any other cases. Also, the Victorville and San Bernardino crimes have different departure behaviors as well. Vastly different from the threat in the Torrance case.

In the, I believe it's the Victorville crime, you have him tying up the victim, saying just, just let them find you. Don't worry, they'll find you. Don't worry about calling the police. They'll find you. You'll be okay. He adds some extra bindings. Not angry. Not vitriolic. Not threatening.

In the San Bernardino case, he actually throws in a deception to the victim. Says, oh, well, you know, I'm actually, probably going to be heading to Chicago.

So he doesn't use threats, expects that she's going to be found by investigators, and plants some potentially misleading information so she could pass that along. But, again, no anger. No threats. No, no vitriol, essentially.

Q Now, as I understand it, signature behaviors are behaviors which help individually identify an offender?

A That is a mischaracterization.

Q How would you describe a signature?

A I would describe signature behaviors as behaviors that help suggest personality and emotional needs of a specific type of offender, not a specific individual.

Q Do M.O. factors necessarily assist in identifying who the offender is?

A They can.

Q And for investigative purposes, are they used and considered in trying to solve crimes?

A Yes, they are.

Q Does every M.O. factor have some kind of unique signature to it?

A No, it does not.

Q In reviewing, in considering the cases that you've studied over the years, and in particular with regard to rapes, is there anything particularly useful in identifying an offender if you know that this person said don't look at me?

A That's a fairly common precautionary act for an offender not wanting to be identified by a victim who he feels might be able to identify him later.

Q So there's nothing particularly unique about that statement?

A Absolutely not.

Q What about tying up a victim?

A That's also very common rape behavior.

Q What about tying up the victim with telephone or computer cords?

A It depends on the circumstance.

Q Well, in this particular case, do you see that fact as being terribly significant in identifying an offender?

A No, because in this case the offender used what we would refer to as available materials. That just happened to be what was at the scene.

Q In other words, if he had brought those particular kind of materials with him, it might have made a difference?

A It would be significant to me, yes.

Q So, it's not uncommon for people to tie up their victims with materials that are available at the places that the crimes are taking place?

A It's actually very common for an offender who has not very well planned out an offense, or who is not planning to do an offense at the moment, to use available materials in the commission of that offense. Include those as part of their modus operandi behavior.

Q What about asking victims about where is the money, or where is your safe, where is your money kept, things of that sort, is that a particularly useful identification factor?

A Well, it helps, you know what the offender's motive is.

Q Is it also common?

A It's very common for people who are interested in robbing people.

Q In this particular Situation, do you find the psychological signature factors that you have been discussing more relevant in determining the identity of the offender than some of the things I've been talking about, such as, don't look at me, tying people up, where's the money?

A Okay. In, in general I do not use any of the information that I gather to help infer an individual. What I would say is it helps me understand better the type of person who is committing -- who is responsible for the behavior in a particular crime scene.

Q And as to the signature psychological behaviors you had referred to, it appears that different types of persons committed different, these different crimes?

A Well, what I would -- I think that's, again, trying to point at a person. What I would say is that each one of these crimes -- the first crime, the one in Rialto, evidences a very distinct signature aspect. The two, the Victorville and San Bernardino, evidence a very distinct signature aspect. And the Torrance crime, apart from those others, evidence a very distinct signature aspect from the ones in the group.

Q So you, as a Profiler, after analyzing the Torrance case, would not immediately jump out and jump to the conclusion, boy, this is the same guy that did these crimes in San Bernardino?

A Not immediately, no, but I wouldn't rely on just that, hopefully.

Q Putting aside physical evidence, or identifications, or anything like that, assuming you were working simply with crime scene factors, and M. O. factors, and that sort of thing.

A Investigatively, because of the fact that they were committed basically in the same half of the State, I wouldn't want, I wouldn't want to exclude them and say they're --definitely the same guy didn't commit these offenses. But investigatively I'd also have to say there really isn't the evidence to put the resources here. The linkage just isn't there. We have to, we have to find something else. We need to continue this investigation further.

MR. CANTY: That's all I have. Thank you.

THE COURT: Mr. Ferguson?

MR. FERGUSON: Thank you.

 

-CROSS EXAMINATION -

BY MR. FERGUSON:

Q What year did you receive your Master's Degree?

A I believe I received my Master's Degree in 1996?

Q Is that when you began your consulting business?

A I actually began that in 1995.

Q '95?

A Yes, through an internship.

Q As an intern?

A Yes.

Q And your entire consulting business has basically been sort of what you call private practice?

A Yes. Yes, it has.

Q Okay. So you contract with different individuals, either law enforcement agencies, or criminal defense attorneys, or other types of attorneys?

A And private individuals, yes.

Q And you thought you had been involved with over 10 cases with law enforcement?

A Roughly. Roughly more than 10 serial cases with law enforcement.

Q And on how many cases have you consulted with criminal defense attorneys?

A It's going to be over 50.

Q Over 50?

A Yes, that's a rough estimate.

Q Your involvement with law enforcement those 10 times or so, has it been essentially sort of a secondary review like you did for the defense in this case where you're asked to review police reports and alike?

A I'm sorry, could you, could you repeat that? I'm not sure what you mean by secondary review.

Q Well, you're asked to review police reports, for instance, maybe view videotapes, that kind of thing. Is that the type of information you review when consulting with law enforcement?

A Well, it depends, it really depends on the case. That does happen. When I'm called in the middle of a serial case, I have to go back and review secondarily what was done. But as new cases arrive -- arise up in that serial case, I have a more active, primary role.

Q And have you ever been employed full-time as -- with any police agency?

A Oh, no.

Q And so you've never been employed as a primary investigator on a case like a police detective? You've never been employed in that capacity?

A Could you please rephrase that? I'm not sure how you characterized that.

Q You're not a peace officer; is that true?

A No, I'm not.

Q And you've never worked for a Crime Laboratory?

A No, I have not.

Q So, you've never physically yourself collected evidence at a crime scene?

A Although I am trained to do so, I've never had to do one for a -- no, I've never had to do one for an actual case. Only, only in simulated scenarios.

Q Was that in school you mean?

A As part of my Masters training, yes, we're required to do a sort of field study, if you will.

Q And certainly you're getting paid to work on this case by the defense. How much are you getting paid for your work in this case?

A Yes, I typically charge -- not typically, I always charge $150.00 an hour for my services, which is about mid-range for a forensic scientist. There are people who make more with more experience, and people that make less.

Q Is that what you've charged in this case?

A Yes, I have.

Q And how many hours have you logged so far?

A This case I contracted out, I made a flat rate up-front of 40 hours, and that was not negotiable, just a matter of whether or not I was going to give my opinion. It was very clear that regardless of my findings, that that would be the amount that would be billed.

Q So, okay, so you've billed 40 hours in this case?

A Yes, I have.

Q Okay. And that's the maximum up agreed to bill, is that what you're saying?

A That was my estimation of the time that I would need to review materials for this case as it lay, yes.

Q So, you've essentially made $6,000 for your role in this case?

A I haven't actually been paid yet, so, no, I haven't.

Q That's what you're going to bill, $6000 for your --

A Yes.

Q When were you first retained by the defense in this case?

A A couple months ago.

Q Okay. And did you compile a report or anything like that?

A No, I was not asked to do a report. I was just asked to analyze for the behaviors and the signature aspects, and do an analysis of the case from those aspects. I was not asked to prepare a full, written profile.

Q You typically do a written report when you consult with law enforcement; is that true?

A Yes, I do.

Q And does that -- is it your understanding that that is -- the information can be provided to the other side?

A Yes, absolutely. But as an investigative document, it is not complete, which is different from going to trial and having everything that you're ever going to have. Because in an investigation, you're always going further.

Q Now, you've -- you testified about the modus operandi type of factors. Those are flexible pieces of evidence; is that true?

A Yes, they are.

Q They can evolve over time?

A Yes, they can.

Q And can be kind of situational?

A Yes, that's a good way of characterizing it.

Q You also have written on this topic, have you not? You maintain a web site, I believe?

A Yes, I do.

Q You post a couple articles' on your web site, one in particular entitled "Behavior Evidence. Understanding Motives and Developing Suspects in Unsolved Serial Rapes through Behavioral Profiling Techniques."

A That's correct.

Q And you kind of, right up front, mention kind of one of the weaknesses of behavioral profiling, that it's --basically does not promise psychic answers and cannot guarantee the complete and positive identification of specific suspects?

A Yes, as I testified to today, yes.

Q And you also, I think in another article, you kind of consider yourself what would be called a deductive Criminal Profiler versus an inductive Criminal Profiler?

A Yes.

Q And one of the hallmarks of the deductive Criminal Profiler is to -- essentially that you rely on a lot of other information in the investigation; forensic evidence, for instance?

A Well, actually that's sort of a mischaracterization. I would say that the primary foundation for a deductive profile is one that starts from the physical evidence and gets behavior from that point, and then moves outward. Not a lot of other, not a lot of other in-puts. Not a lot of extraneous things come into play.

Q And so the, the purpose of behavioral profiling or criminal profiling isn't to supersede findings of forensic evidence or physical evidence; is that true?

A That is very true.

Q Yes. And you're not -- you wouldn't dare to say that, for instance, your opinion based -, your behavior profiling of an individual case should prevail over, for instance, a DNA analysis?

A Absolutely not.

Q Okay. Did you review any of the physical evidence in these particular cases that you've described?

A In as much as they lent themselves to demonstrating the behavior of the offender, yes.

Q And what do you see as -- you said there's different types of motivations, perhaps, between the Torrance crimes and the, let's just call them the San Bernardino County crimes.

You also mention, though, that one individual suspect can have different motivations at different times; is that true?

A That's correct.

Q And I think you indicated it -- kind of an advise to investigators that, I think you say, given the nature of human behavior no two cases are really ever alike?

A That's correct.

Q Because criminal --

A Not in an absolute, definitive, individualizing instance, like say a fingerprint or DNA.

Q And human behavior develops uniquely over time in response to environmental and biological factors; is that a true statement?

A Yes, it does.

Q And a single offender is capable of multiple motives?

A Yes, they are.

Q So, the Rialto murder might, even though it may indicate a different type of motive than, let's say, the Torrance, since an individual is capable of different motives, that itself couldn't rule out the same person was involved?

A Right, this is why I suggested that if I were giving advice to law enforcement in the investigative phase where we were still gathering information, it would be my duty to say we really -- while we keep these crimes off to the side, we don't really have a behavioral connection. That doesn't mean that later on physical evidence might not link them up.

However, we're not in the investigative phases anymore. We've moved on. We're now at the trial phase where we have as much as we're going to have. And my role in this case was to assess whether or not the behavior, irrespective of what the physical evidence says, is enough to show that there is a commonality between the crimes or a common theme.

And as I said, that is not a common theme, but that as you are suggesting does not preclude the possibility of a single offender. That's not what I'm here to talk about.

Q And if the physical evidence suggests a single offender, then in that sense the criminal profile is wrong; is that -- I mean, the criminal profiling assumptions, that would suggest a different offender?

A I have not suggested a different offender.

Q Okay.

A That's -- I don't believe I have. I mean, have I, in my testimony? I mean, I don't believe I have.

Q Okay. What similarities do you see between the --let's call it the Victorville, the San Bernardino, and the Rialto crimes.

A I wouldn't lump those three together, only because the Rialto crime, there's so much that's not established. The types of things that I look at, that I need to look at are just not established in the evidence. The verbal behavior is not there for us to analyze. The nature and the sequence of the sexual acts are not there for us to analyze. The offender's method of approach and method of attack is not there for to us analyze.

We do have some methods of control that are there, and we do have the evidence of rage, as evidenced by the severe, brutal attack upon the victim, but we don't have all the other things that put Victorville and San Bernardino closer together. So, I would not, I would not be comfortable lumping those three together, behaviorally speaking.

Q Right. And you talked about signature type of behavior, and I think in your deductive profiling article you mention examples of signature type of behavior, and that's where an offender repeatedly uses a specific type of binding. You specifically mention that as an example of a signature type offense?

A Yes, I do.

Q And in your review in this case, you know that in all four crimes we're discussing that telephone cords were used; is that true?

A Right, that's an excellent observation. However, one of the most important things that we have to remember is not to take -- this is a general admonition to investigators and to profilers alike. We cannot take a single behavior and interpret it out of its context. And in the context of this offense, that specific type of binding is available material found at the scene.

And on top of that, I'm not sure that we have established that it was used in Rialto, to my knowledge, and the Victorville and the San Bernardino crimes were tied hands and feet. Whereas, the Torrance crime they were tied hands to feet. So, there's a difference in the way they were tied as well. So, we can't really safely go that route and say that's a signature behavior, because he's not doing it in the same -- if it's the same offender, we except that assumption, he's not doing it the same way each time.

So, again, the admonition is to not take a specific behavior and try to interpret it outside of its context of the crime scene.

Q And likewise, with physical evidence like we talked about DNA, you're certainly not suggesting that your opinion would supersede the findings of physical findings based on things like DNA; you're also not suggesting that your profiling should take precedence over things like positive identifications by.witnesses, as well, either, are you?

A Well, it depends on the witness. I mean, it depends on whether or not the witness is consistent, reliable. That's all stuff for the jury to take into consideration. I don't really tell -- I'm not here to substitute for the Judge or the jury. I can educate. I can give an opinion, and they can apply the requisite weight. And just as with witness testimony, juries and Judges will apply the requisite weight based on what they know of that person. I don't -- I mean, that's really a tricky area, because it comes down to the issue of credibility. So I'm not here to try to push it for or against witness testimony.

Q So, I guess I'm confused. You look at physical evidence --

A Uh-huh.

Q -- to suggest a type of profile?

A No, I look at physical evidence to establish behavior.

Q Okay.

A And from the behavior, the convergence of behavioral evidence, you see patterns and you recognize those patterns as evidencing M.O. and signature behavior, which is further evidence of signature aspects, motivational, psychological themes for the behavior.

Q Okay. So, certain, certain pieces of physical evidence might suggest a certain type of motivation, Certain type of behavior; is that --

A Well, again, you're cutting out the behavior. Certain physical evidence suggests behavior, and that behavior is used to -- you look at the behavior and look for a convergence of the behavioral patterns to suggest or to infer characteristics, crime scene characteristics.

Q So, all you can say is, based on your review just on the behavior of characteristics, it doesn't necessarily suggest the same individual?

A It does not, that's correct. That's an accurate characterization.

Q Doesn't necessarily, but it doesn't rule out the fact that it could be one individual, does it?

A No, it does not. And again, that's -- I don't believe I've suggested that in my testimony.

Q Okay. And in light of the uncertainty about what you can develop through profiling, that it's reasonable to rely, then, on physical evidence; is that true?

A Yes. Yes, it is. Again, the reason that we're here is because in some of these cases there's an absence of physical evidence. And when you don't have that, you kind of are left with, you know, what you have to analyze. I'm not really trying to use -- I would never suggest to use profiling to suggest the guilt or the innocence of a particular individual. It's used to explain what is there.

Q And even in law enforcement use, isn't it really only designed to maybe suggest a pool of possible candidates or possible suspect?

A To reduce that pool, yes, to reduce that pool as much as -- but not to the point of individuating, yes.

Q And I just have a few more things here. You mentioned that there are certain categories of rapists. I think that's in one of your articles that's on the internet?

A Motivational typologies.

Q You also note that it's most likely that a rapist will fit into more than one category. There will be some overlap?

A It's very, very often the case, even within a single offense, you'll see some overlap. Actually, I didn't see any in these cases here that we're talking about today. There weren't any ambiguous behaviors, although the behaviors that were evidenced suggested a single motivational category for the behavior. But, yes, it is possible within a single event for there to be multiple motivations or multiple motivations across multiple events.

Q And as far as, at least on two, the Victorville and the San Bernardino case, and the Torrance case, we know that the victim in each instance was penetrated vaginally from behind; is that true?

A Yes.

Q And that scenario you didn't factor into your consideration in' any way?

A That's very common for an offender who wants to protect their identity.

Q And this is based on your experience since --

A 1990. I've been studying, like I said, I've been studying sex offenders independently from 1992, independently. '93 I started formally studying at University. And then in '95, I actually started working cases.

Q Okay. So, in 1990 you were, what, a freshman in college, then?

A Essentially.

Q Okay. And that was just studying you did on your own?

A Yes.

Q And you also kind of discounted the fact that phone cords were used in each instance because that was available at the scene?

A It's very common to see actually phone cords or lamp wires to be used, even when other more reasonable materials are available.

Q And that's the type of things you might expect to see like in an office type of setting; is that true?

A That's absolutely true.

Q And that's also similarity, isn't it, that each of these crimes occurred in an office type of building?

A Well, one interesting thing, as I said, in one of the offenses is all doctors have safes. And I noticed that not all doctors offices were, were selected. If you make the assumption that these cases are related, which I don't -- behaviorally I don't, I don't think that they're related behaviorally, because I don't have evidence of that. They are offices, but they are different types of offices. But generally, yes, they are offices, but they're like one's the United Way. One's, one's a rape crisis center. One's a Doctor's office, and one's a pawn Shop. I mean, they're different businesses.

Q Well, Windemere Appraisal, what kind of business is that?

A I'm sorry, not a pawn shop. It's an appraisal office. I apologize. You're correct.

Q And the rape crisis center is Behavioral Health Services?

A Yes.

Q And the Doctor's office is actually, also, a counseling office?

A Yes.

Q So, two psychologists' office?

A Right, and those are the ones that -- the San Bernardino and the Victorville, which I felt had a very strong connection.

Q Which two is that?

A The Victorville and San Bernardino.

Q You felt there was a strong connection between the two?

A Stronger than between Torrance and Rialto.

Q And that's largely because the Rialto -- we just don't have -- the victim didn't live to tell us exactly the sequence of things?

A That is one reason. But also, the other reason is that that victim is dead, and that victim was brutally beaten in a very short period of time. A lot of anger at that scene, and there's no anger at the other scenes. So it's not just the absence of evidence, it's what's present as well.

Q Well, you don't know the provocation that may have occurred between that victim, as opposed to other victims who maybe complied more willingly; you just can't tell that from your review, can you?

A Not in this case, no. That's correct.

Q And there's also the fact that a chrome handgun was used in all the crimes that we know of where a victim survived; is that true?

A That's true. However, the first one we don't know if a gun was used. That was Rialto. The next two it was an automatic. And in the fourth one, it's a revolver in the Torrance case. It's a revolver. It's a different gun.

Q And those are things that you -~ basically the similarities I mentioned, you're just kind of discounting?

A I didn't discount them. I considered them. They don't -- they're not, as we discussed already about how M.O. is flexible, and how M.O. can change, and it's not a very reliable, stable thing to look at if you're trying to connect crimes. I was looking at -- if you look at the signature aspects, and the signature behavior that suggested those aspects, those are the things I give the most weight to. But we talked about the guns. There are differences in the guns that I did take into account.

Q Did you review the DNA results at all?

A No, that's not really, that's not really my expertise.

Q Okay. So you didn't want to know if there was a highly significant figure involved in that in making your assessment of whether the same person did these?

A That's really not, again, what my role was in this case. My role was to come in and take a look at the behavior, and look at what the behavior suggested, not to substitute for the criminalist who worked on this case.

MR. FERGUSON: Thank you. Nothing further.

THE COURT: Any further questions?

MR. CANTY: Very quickly.

 

-REDIRECT EXAMINATION-

BY MR. CANTY:

Q What you're telling us is not -- you're not asserting that the same person committed all these crimes; is that correct?

A That's correct.

Q What you're asserting is that the behavioral evidence that you have examined with regard to the Torrance crime doesn't help prove whether that same person committed that crime as compared to the San Bernardino crime?

A I'm saying that and more. I'm saying that it's ambiguous. That not only does it not show that they committed it, it could support an argument that suggested otherwise in the absence of physical evidence.

Q In other words, if there's eyewitnesses or if there's DNA, or anything else that connects somebody to those crimes, that's not relevant to your consideration?

A Well, it depends on what the eyewitnesses say about behavior. But in terms of, of implicating a specific individual, no, that was not relevant to my analysis. That was not really my role in this case.

Q And based upon the behaviors you observed in connection with the Torrance crime, you find nothing probative about it in terms of establishing who committed the San Bernardino crimes?

MR. FERGUSON: I'm going to object. This calls for a legal conclusion.

THE COURT: Calls for what?

MR. FERGUSON: The way it's phrased, I think it calls for a legal conclusion.

THE COURT: Overruled.

THE WITNESS: Could you repeat the question, please?

(BY MR. CANTY) With regard to the behavioral factors that you have-analyzed in connection with the Torrance crime, there's nothing that you find there that is probative as to whether or not the same individual committed that crime as compared to the San Bernardino County crimes?

A No, I do not.

MR. CANTY: That's all I have. Thank you.

THE COURT: Do you have any further questions?

MR.FERGUSON: No.

THE COURT: All right. Thank you. You may step down.

THE WITNESS: Thank you.

MR.CANTY: I have no other evidence to offer on that motion today.

THE COURT: District Attorney have any evidence?

MR.FERGUSON: No, not -- no evidence.

THE COURT: Okay. You wish to be heard, Mr. Canty?

MR.CANTY: Well, at the risk of belaboring what we've been going through for the last half hour or so, I think that the point of this with regard to the fifth prongor fifth standard, as elaborated in the Harris case, is the Court must decide independent of whether or not there's any eye witnesses, regardless of how Mr. Miles may have been connected to the Torrance crime, and regardless of how he's connected to the San Bernardino crimes, in terms of physical evidence, or eyewitnesses or whatever. The issue before the Court now is whether the introduction of the Torrance offense adds anything in terms of the jury's belief that the crimes that will be tried here were committed by the same person as Torrance.

Assuming that Mr. Miles is somehow connected to the Torrance crime, and I believe the evidence would be that the witnesses would identify him as the perpetrator, assuming the two people come in here and say this person here committed this crime against me in Torrance, what does that tell the jury about the likelihood that Mr. Miles committed the crimes here in San Bernardino County? And if there is no transference, if there is no similarity that is significant, and we have to put aside common factors 1ike statements, don't look at me, tying up, and things of that sort. If there's nothing about that crime that is signature-like or unique that assists the jury in determining whether or not Mr. Miles committed the crimes in this County, then that crime has no probative value in this case.

And even if it has minimal probative value, the Court must then weigh that probative value against all of the other factors involved, and the inflammatory nature of the evidence, and it is very inflammatory because it does involve another rape. It involves sexual behavior that is different from this case. It involves a victim who was pregnant at the time, who contracted a sexual disease. There is just a lot-of inflammatory aspects of that case. It's one that was committed after our crimes.

And, you know, one might argue that if you're interested in knowing about the propensity of someone who commits this kind of offense as of the time our crimes were committed, I'm not sure that it adds 'anything to say that if we assume it's the same person this was done two, or three, or four months later.

So, we feel that there is minimal probative value here of introducing Torrance, and a terribly significant inflammatory aspect to bringing this uncharged crime before the jury. And I would feel that under the Harris case that it would be appropriate to exclude the evidence.

THE COURT: Mr. Ferguson?

MR. FERGUSON: Well, the defense relies heavily on the Harris case and ignores completely -- I don't even think they cited the Soto case, which was decided subsequent to that just this, this. last year, 1998. And the Soto case extensively goes through the legislative history of 1108, and essentially concludes that the -- and I set that all forth in my motion, so I don't want to repeat it too much here -- but essentially the presumption is in favor of admissibility. And it essentially cautions against a Court going back into an ll01(b) factor --l101(b) analysis where You're going into specific factors and nitpicking about, you know, whether it was hands were tied to the feet or visa -- or whatever. Those little types of details.

Even if the Court were to look at the factors set forth in Harris I have no doubt the Harris' Court, if they were to look at the facts in this case, they would admit this evidence. This is completely different from the types of facts that were presented in Harris.

In Harris, you're talking about an edited version of a rape, which was significantly more violent and brutal than the charged rape, and it was a rape that occurred 23 years before. They didn't have the witness or the victim testify. It was, it was very misleading. There were those kinds of

concerns.

Even in the Soto case, I believe it was a rape, two sexual offenses, which preceded the charged rape by 20 and 30 years, and that was held to be admissible in Soto. Likewise, People versus Fitch, which I believe is a Fourth District case out of 1977, upheld uncharged sexual conduct occurring five years before the rape. The fact that this is before or after is of no consequence. 1108 specifically eliminates any references to whether the uncharged offense is before or after. I think the heart of it, is whether it's close in time, and this is significantly closer in time than the cases of either Fitch, Harris, or Soto. We're talking about a span of four months.

So, whether it's before or after is, is irrelevant for purposes of an 1108 analysis. Again, I would just direct the Court to my brief where it talks about the history Of 1108, and basically that it is a presumption in favor of admissibility.

The only thing I would say with respect to the testimony of Mr. Turvey is that, essentially, that his profiling evidence falls by the wayside, because it's inherently wrong. I mean, by his own statement, he's not saying that -- I mean we're supposed to basically assess the probative value based on the profile he sets forth. But by its own definition, the profile is far less reliable than the actual physical evidence. And the physical evidence, of course, in this case does, does correlate, does combine the crimes, does show that there is a connection by physical evidence with respect to the three San Bernardino cases, and a different type of evidence, eyewitness identification in terms of the Torrance case.

And I think, as I mention in my brief, that's what makes this, this Torrance offense so probative, because it's witness identifications of the defendant, which isn't present in any of the San Bernardino cases. So, it essentially corroborates the scientific evidence, and very obviously that heightens the probative value.

The prejudicial value or the potential is minimal in light of the fact that, Number 1, the Rialto case that they're going to hear about is significantly more brutal than the Torrance case, and there's also two additional rapes besides. So it's not like the Harris situation where it was a type of sexual offense which was wholly unrelated 23 years before, and potentially more inflammatory because it was a more brutal offense. Case law is essentially a hundred percent in favor of admission of this piece of evidence under the facts we have. I'd submit it.

THE COURT: This is a motion to exclude evidence under Section 1108 of the Evidence Code. And as I read those Sections, starting with 1100 through 1108, and the cases that have been cited in the points and authorities, specifically People versus Fitch, People versus Harris, both cases were decided by the same Court, I think out of the Third District, and People versus Soto, which was a case cited, I think out of the Fifth District.

I analyzed this motion in maybe a little different fashion. Basically, the Legislature in enacting 1101 has held, as a matter of policy, that other crime evidence or prior bad acts, if you want to call that evidence, is inadmissible to show that the accused acted in conformity with that character. In other words, we're talking about character evidence here, and whether evidence, either in the form of reputation, opinion, or specific acts can be admitted to show that the defendant acted in conformity with that character. That is, I think we agree, is generally prohibited under Section 1101 of the Evidence Code.

1108 was recently added to the Evidence Code to provide a specific exception to that in sex cases where a person is charged with a sexual offense and the prosecution wants to offer evidence of a prior sexual or other sexual offenses to show a propensity to commit this offense, or the charged offense, that can come in and is not subject to 1101, and it is subject to Evidence Code 352. And that, of course, we'll get to in a moment.

So, the difference is we spent a lot of time here talking this morning about sufficiency of the M.O., or signature factors of the various crimes that would reasonably lead someone to believe that the same person committed all of those crimes, and I don't think that's really the issue we're talking about today. I think we're talking about -- I mean, that's an ll01(b) issue, which you may have to address later whether it can come in for the purpose of showing similar M.O. or to show identity.

But now we're talking about allowing this evidence to come in to show that because he has committed crimes of rape, he has acted in conformity with that character in the cases that are presently pending before the Court. And, as I say, ordinarily if it were any other kind of crime, you can't do that

under 1101. But under 1108, the Legislature has created this specific exception, but it is not unbridled. And as People versus Fitch and People versus Harris pointed out, the thing that saves it from serious constitutional challenges is the fact that the Trial Court has the opportunity and the obligation under Evidence Code 352 to carefully evaluate that testimony and that evidence, and to determine whether its probative value is substantially outweighed by the possibility that it will consume an undue amount of time, or create a substantial danger of undo prejudice, confusion of issues, or misleading the jury.

And as the Court in People versus Harris pointed out, the danger with allowing that type of evidence to come in is that it tends to try the defendant not for what he did, but for who he is, and so we've got to make sure that that protection is in place.

Harris did set out about five criteria that the Court should consider in exercising and in weighing the evidence under 352. One is the inflammatory nature of the evidence. Two is the probability of confusion. Three, the remoteness of the other acts. Four, the consumption of time. And finally, the probative value. And I'm assuming that, as Mr. Canty pointed out, this evidence that we received this morning deals with that last factor.

Another case that was cited by, I think it was Mr. Canty in his points and authorities, and I think it sheds some light on this issue as well, is a California Supreme Court case of People versus Garceau, G-A-R-C-E-A-U, a 1993 Capital Case. Of course, this was decided prior to the enactment of 1108, and

it didn't really involve those issues, but it did involve the prosecution bringing in evidence of prior murders or a prior murder committed by Mr. Garceau. And in his closing argument to the jury, the prosecutor strongly suggested that if the defendant was capable of killing that individual, he was also capable of killing the victims in this case.

The Court held that, "assuming the jury considered such evidence in that context, in other words, the defendant's propensity to commit murder, the jury arguably might have inferred that because defendant killed Rambo, defendant also was capable of killing other friends. If the jury drew that inference, the prosecution's burden as to the central issue in the case, the identity of the Bautistas', B-A-U-T-I-S-T-A-S, slayer, arguably was lightened, thus raising the possibility that defendant's constitutional right to due process of law was impaired."

And then it finally goes on to discussing whether ~r not this was harmless error. The Court stated, "we consider the potentially devastating impact of other-crimes evidence that permits the jury to conclude that a capital defendant has a propensity to commit murder.

So, now we get down to the facts of this case. And the facts of this case are unlike the facts in Fitch, Harris, and Soto. Those cases involve strictly sex crimes, and this case, of course, involves rape, as well as murder, robbery, and burglary. And I think we would all agree that 1108 is not does not permit the jury to consider the fact that the defendant was convicted of another burglary and another robbery in conjunction with rape, cannot consider that in deciding whether or not he committed the robbery and the burglaries in this case. It would be limited only to the rapes in this case.

So the jury would have to be carefully instructed that they can consider the prior rape conviction as evidence that the defendant committed this rape, but not the robberies or the burglaries in deciding that he had a propensity to commit the robberies or the burglaries in this case. That could be confusing to the jury. The fact is, in none of those cases -Fitch, Harris, or Soto - was the identity of the perpetrator an issue. In this case, identity is the central issue in this case.

In Fitch, the question, or really the issue was whether or not it was a rape or consensual sex. In Harris, the defense was one of the victims had hallucinated the alleged attack, and that the other victim consented. And in the Soto case, which involved lewd and lascivious acts with a child, the defense was that he didn't do those acts. But identity was not was not the issue.

And it seems to this Court that using 1108 evidence to prove that the accused was actually the person who committed the crimes differs somewhat from using it to prove a person's actions amountin9 to sexual offense. In other words, propensity to commit a sex crime appears to be more probative where the only question is whether the accused raped or engaged in consensual sex with the victim. Where there is no question of rape, but the accused denies that he was the perpetrator, bringin9 out his prior sex-crime activity would seem to fall

within the category of trying the defendant for who he is, rather than for the current offense.

And as I have indicated, I think there is an additional danger that the fact that we have a rape, three rapes that are involved in the pending charges, we also have a capital murder, and we have robbery and burglary, and 1108 would not permit that evidence to come in to show his propensity to commit those crimes. And I think there's a very real danger that the jury could consider it for those improper purposes and trying to properly instruct them could result in confusion to the jury.

So weighing the factors under Harris -- and I agree, Mr. Ferguson, with your contentions that the similarities in the offense is not really the issue here. That's, that's the issue under ll01(b), but it's really not the issue under 1108, except to the extent that, as in Harris, where it is so dissimilar and it is so -- the prior sexual offense was so much more inflammatory than the present one, that in that case perhaps the lack of similarity could be considered important. But the Soto case makes it clear, as does the Harris case, that the two sexual offenses do not have to be similar.

But, in any event, evaluating the first factor, the inflammatory nature of the, of the other uncharged offense in this case is not so great as compared with the rapes and the charged offenses. Secondarily, however, I think there is a significant chance that the jury would be confused, particularly in the instructions that would have to be given in order to limit the purpose for which the evidence could be considered. Thirdly, I don't think the crime is too remote, even though it occurred after the charged crimes, I don't think that makes any difference. Fourth, there would be -- there could be an undo consumption of time taking Mr. Canty at his word that the Torrance case took five days to try, and in this case it could take longer. That would consume a significant amount of time.

And finally, while there are some similarities between the charged crimes and the other crime that would give it probative value, it's the Court's opinion that that value is substantially outweighed by the likelihood that the jury would consider this evidence as tending to show defendant's propensity to commit crimes other than rape. And therefore, I think I would have to exclude it under 1108.


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