[00:00:00] Speaker 02:
Okay.

[00:00:02] Speaker 02:
May it please the court, Elizabeth Richardson Royer for the appellant Charles Luckett in this case.

[00:00:09] Speaker 02:
I plan to reserve three minutes here, but again, I will keep an eye on the clock.

[00:00:13] Speaker 02:
This is a troubling case.

[00:00:16] Speaker 02:
Mr. Luckett is serving a life sentence based on a very questionable eyewitness identification, a maybe given 19 years after the fact when the witness said at the time he

[00:00:29] Speaker 02:
could only possibly identify the perpetrator.

[00:00:32] Speaker 02:
And a DNA match that is also troubling.

[00:00:40] Speaker 02:
The envelope from which the technician took the DNA was not sealed.

[00:00:45] Speaker 02:
There was a napkin in the envelope in which the cigarette butt was found that wasn't there when the cigarette butt was recovered from the restaurant.

[00:00:53] Speaker 02:
The other cigarette butts were missing.

[00:00:55] Speaker 02:
One DNA expert found that

[00:00:58] Speaker 02:
There were multiple sources.

[00:00:59] Speaker 02:
The other found that there was only a single source.

[00:01:01] Speaker 02:
And on this bad eyewitness ID and this questionable DNA result, this conviction stands.

[00:01:09] Speaker 02:
And I understand that this is not an actual innocence claim and that this court is not a conviction integrity review unit.

[00:01:16] Speaker 02:
But I do think that the scarcity of the evidence against Mr. Luckett matters in this case.

[00:01:21] Speaker 02:
I think it matters to demonstrate and underline the deep prejudice and the harmfulness of the trial court's decision to exclude evidence concerning Mr. Luckett's brother.

[00:01:34] Speaker 02:
The jury never heard that Mr. Luckett's brother, who had a history of committing exactly this kind of offense in Oakland, who lived in Oakland, unlike Mr. Luckett, was stopped in the crime perimeter right after the crime occurred, and that he remained a suspect

[00:01:50] Speaker 02:
you know, until the time that Mr. Luckett was later interviewed 20 years later.

[00:01:54] Speaker 04:
On that night, I think there was a perimeter set up and he was Chris, right?

[00:01:59] Speaker 04:
Was stopped and other witnesses would be at least one, maybe two who had been in the restaurant were taken to him and said, that's not the guy.

[00:02:08] Speaker 04:
Is that right?

[00:02:09] Speaker 02:
That's correct.

[00:02:10] Speaker 02:
Okay.

[00:02:10] Speaker 02:
And I will say that on that note, and I sort of run through the inconsistencies in the briefing, the witnesses descriptions of these two gentlemen were all over the map.

[00:02:21] Speaker 02:
Um, you know, the, the height of the second, one of the men took the victim to open the safe and the other man stayed behind to sort of corral the restaurant patrons and the way that witnesses describe that man, you know, either he was five foot three or he was six foot.

[00:02:36] Speaker 02:
I mean, the, the differences are astounding.

[00:02:37] Speaker 02:
And so,

[00:02:38] Speaker 02:
The fact that witnesses couldn't immediately identify somebody doesn't strike me as suggesting that this stop was meaningless.

[00:02:49] Speaker 02:
And that, again, is something that- Doesn't suggest to you the stop was- That the stop of Chris Luckett was meaningless, such that it should have been excluded.

[00:02:57] Speaker 02:
Oh, okay.

[00:02:58] Speaker 02:
And again, that's something that the jury should have been allowed to consider, along with the scarcity of the evidence against Mr. Luckett, his alibi evidence,

[00:03:08] Speaker 02:
And the fact that the jury wasn't allowed to consider that was the result of a California evidentiary rule that is essentially arbitrary, that you cannot present evidence of third-party culpability unless there's a direct connection.

[00:03:27] Speaker 00:
And it's this test that... A direct or circumstantial connection, that's what Hall said.

[00:03:31] Speaker 00:
What evidence is there that the brother was in any way involved in the Sizzler murder?

[00:03:38] Speaker 00:
Except that he was in the area at the time.

[00:03:41] Speaker 02:
It's circumstantial evidence, Your Honor.

[00:03:43] Speaker 00:
I mean, would it be evidence to say he'd been convicted 27 times of robbery before and therefore he was guilty this time?

[00:03:51] Speaker 02:
No, Your Honor.

[00:03:52] Speaker 02:
Of course not.

[00:03:53] Speaker 02:
No.

[00:03:53] Speaker 00:
So then what is the evidence?

[00:03:55] Speaker 00:
I mean, Hall is very clear that you have to have direct or circumstantial evidence foundational to use what we used to call at the Hall of Justice a Saudi defense.

[00:04:05] Speaker 00:
Some other dude did it, right?

[00:04:07] Speaker 00:
So where is that foundational evidence in the record?

[00:04:12] Speaker 02:
I think that is really the crux of it, is how much evidence do you have to have?

[00:04:16] Speaker 02:
How direct is the connection?

[00:04:18] Speaker 00:
Your argument is that prosecution evidence was very thin, so therefore very thin or nonexistent foundational evidence would be enough?

[00:04:27] Speaker 02:
Not exactly.

[00:04:28] Speaker 02:
The scarcity of the evidence against Mr. Luckett goes to whether the error was harmless.

[00:04:33] Speaker 02:
And so I started there.

[00:04:35] Speaker 02:
I think the evidence here was sufficient to establish, to meet a standard that

[00:04:41] Speaker 02:
is reasonable.

[00:04:41] Speaker 02:
I think the Hall standard is too high.

[00:04:43] Speaker 00:
The presence of the brother in the perimeter is enough evidence without considering his 27 priors.

[00:04:53] Speaker 02:
The evidence of the brother within the perimeter, and I don't agree that the evidence of his priors would have been inadmissible.

[00:05:01] Speaker 02:
I think it could be admissible to show motive, all of the things that priors can be admissible for.

[00:05:06] Speaker 02:
He was wearing clothing also that matched the descriptions of several witnesses.

[00:05:12] Speaker 02:
So that's an additional fact that goes to suggest his possible involvement.

[00:05:18] Speaker 02:
It was a matter of blocks.

[00:05:24] Speaker 02:
Given, again, the scarcity of the evidence against Mr. Luckett, this information would have changed the jury's mind.

[00:05:33] Speaker 02:
They had no reason to question the eyewitness identification.

[00:05:36] Speaker 02:
But if they had known that the brother was possibly an alternative suspect, that could have changed the weight of that evidence.

[00:05:43] Speaker 02:
And with the DNA evidence, both of the experts testified about the probability that that profile came from somebody unrelated to Mr. Lockett.

[00:05:51] Speaker 00:
Was there any evidence by the defense or by the prosecution as to what the odds would be for similar DNA as to a related person?

[00:06:01] Speaker 02:
No, we don't have that evidence in the record.

[00:06:04] Speaker 02:
But I think that the presence of someone related to Mr. Lockett would have undercut these enormously high probabilities.

[00:06:12] Speaker 00:
Why?

[00:06:13] Speaker 00:
Is that just your intuition, or is it based on some evidence?

[00:06:18] Speaker 02:
It's based on the fact that the numbers that the experts were testifying about aren't valid if we're talking about the possibility of someone.

[00:06:27] Speaker 00:
That presupposes that there is a difference between unrelated and related persons, correct?

[00:06:33] Speaker 02:
That's correct.

[00:06:34] Speaker 00:
And is there any evidence that there is a difference in this record?

[00:06:39] Speaker 02:
Only that the experts were very clear that the numbers they were presenting had to do with unrelated individuals.

[00:06:46] Speaker 00:
And there's no one asking them, including the defense attorney, wouldn't those numbers be different if it were a related person?

[00:06:57] Speaker 02:
The defense counsel couldn't ask that question because he was prevented from asking that question.

[00:07:02] Speaker 02:
He was prevented from making any mention of Chris Luckett.

[00:07:05] Speaker 00:
No, no, not mentioning Chris Luckett, but would they be different?

[00:07:10] Speaker 00:
In order to be some circumstantial evidence under Hall, wouldn't that be the type of evidence that would be helpful?

[00:07:19] Speaker 02:
Do I wish that trial counsel had made a better offer of proof?

[00:07:22] Speaker 00:
Are you claiming ineffective assistance of counsel?

[00:07:26] Speaker 02:
That's not a claim that I have before me.

[00:07:29] Speaker 02:
But I don't think that the trial counsel's failure to press the difference between unrelated and related means that this court can't consider how things would have been different if counsel had been able to present evidence that Chris Luckett was there and question the experts about the differences between related and unrelated.

[00:07:47] Speaker 00:
Well, we don't know the difference between related and unrelated.

[00:07:51] Speaker 00:
So you're asking us to make a decision based on ignorance.

[00:07:57] Speaker 02:
No, I'm asking the court to find that Mr. Luckett was not able to present his complete defense because the jury was missing critical evidence.

[00:08:07] Speaker 00:
Yeah, I got it.

[00:08:10] Speaker 01:
So basically what you have is the brother is in the vicinity, he was wearing the same clothing, and he had committed similar crimes in the past in a manner, the same manner as those crimes, all right?

[00:08:26] Speaker 02:
That's correct.

[00:08:27] Speaker 02:
And there is a reference in the preliminary hearing transcript for the co-defendant who was charged and then the charges were dismissed, the man who was found in the crime perimeter and identified.

[00:08:40] Speaker 02:
In that preliminary hearing, one of the witnesses said, yes, that's him.

[00:08:46] Speaker 02:
And it was the same guys that did this robbery as guys that did a similar robbery in the Sizzler eight months before.

[00:08:53] Speaker 02:
And so I wish that I had that transcript in the record.

[00:08:55] Speaker 02:
I only have reference to it, but there is a suggestion that possibly Harvey Brumfield and Chris Luckett had committed a robbery of the same sizzler in the past.

[00:09:04] Speaker 02:
So it's not just similar robberies, it's possibly an identical robbery.

[00:09:07] Speaker 01:
In terms of the exclusion of the evidence, what do we make of counsel's statement that he had no information that Chris Luckett committed the crime?

[00:09:18] Speaker 01:
I mean, in terms of relevance and the California standard, that's a difficult statement.

[00:09:28] Speaker 02:
It is a difficult statement, and it sort of ties into Judge Baez's questions about ineffective assistance of counsel.

[00:09:35] Speaker 02:
I don't think that he had to be able to prove that Chris Luckett committed the murder.

[00:09:43] Speaker 02:
I think for him to say that there's no evidence is just false when he was stopped right after the crime, right near the crime scene wearing

[00:09:52] Speaker 02:
the same clothing as one of the suspects.

[00:09:54] Speaker 04:
The California standard requires evidence of direct involvement, right?

[00:09:58] Speaker 04:
Isn't that the point?

[00:09:59] Speaker 04:
That's correct.

[00:10:00] Speaker 00:
Let me ask you a question that came up with Judge Thomas's questions.

[00:10:07] Speaker 00:
Modus operandi, is there any indication of the 27 priors which are similar to what happened at the Sizzler?

[00:10:15] Speaker 02:
Yes, Your Honor.

[00:10:17] Speaker 02:
What was that evidence?

[00:10:23] Speaker 02:
The trial counsel said to the court, and so I don't have the underlying records, but that in the police, but he made this representation to the court, and I think we can accept that it's true, that in the police reports for some of Chris Luckett's priors, you know, the robbers made exactly the same kind of statements that were made in this case, you know, this is not a joke, get on the floor, the same very exact kind of takeover robbery.

[00:10:47] Speaker 02:
And I'll find this right for you.

[00:10:48] Speaker 04:
Witnesses, just to be clear, I know, I think I know what part of the transcript you're talking about, that the witnesses in Sizzler

[00:10:53] Speaker 04:
quoted statements that the robbers made that night in the Sizzler restaurant that match up very closely with statements reported in the other police reports.

[00:11:06] Speaker 04:
That's correct.

[00:11:06] Speaker 04:
That Chris Luckett had been involved in.

[00:11:08] Speaker 04:
That's correct.

[00:11:09] Speaker 00:
What is the evidence of similarity and modus operandi other than counsel's statement that they, yes, they are similar?

[00:11:18] Speaker 02:
That's the only evidence that we have.

[00:11:22] Speaker 02:
But no one disputed that.

[00:11:23] Speaker 02:
No one said, well, I don't think that's really in these documents that you're.

[00:11:28] Speaker 02:
And he asked the court to take judicial notice.

[00:11:32] Speaker 04:
But they're not exactly signature statements, right?

[00:11:35] Speaker 04:
Takeover robbery to say, telling people to be quiet and get down.

[00:11:39] Speaker 02:
I think that's right.

[00:11:42] Speaker 02:
I do think that the statement, this is not a joke.

[00:11:45] Speaker 02:
you don't hear that in every robbery.

[00:11:47] Speaker 02:
I think the fact that there were two men possibly in the same sizzler restaurant.

[00:11:53] Speaker 04:
Were there other comments or indicia as represented in the transcript about those earlier police reports that made the MO looked, or I should say, what's the one that's the most closely matched up?

[00:12:09] Speaker 04:
The most conspicuous, the most atypical,

[00:12:12] Speaker 02:
I think it's the comment, this is not a joke.

[00:12:14] Speaker 02:
Not a joke?

[00:12:15] Speaker 02:
OK.

[00:12:15] Speaker 02:
I think that's the most unique of the statements identified.

[00:12:18] Speaker 04:
OK.

[00:12:19] Speaker 04:
Thank you.

[00:12:21] Speaker 04:
Do you want to save your time?

[00:12:22] Speaker 02:
I will save my time, and I will find that site for you before I come back.

[00:12:26] Speaker 02:
Thank you.

[00:12:26] Speaker 04:
Thank you.

[00:12:36] Speaker 03:
Good morning.

[00:12:37] Speaker 03:
May it please the court?

[00:12:38] Speaker 03:
Jill Thayer for Respondent Appellee.

[00:12:41] Speaker 03:
Just like to note a couple of things about the record that we talked about.

[00:12:45] Speaker 03:
Smith did identify someone and that was also introduced to trial.

[00:12:49] Speaker 03:
I don't think the name, but Harvey Broomfield.

[00:12:53] Speaker 03:
So he did.

[00:12:54] Speaker 03:
And also at trial, several witnesses said that they had identified or they had been asked to look at various individuals who had been stopped in the area and then were released.

[00:13:05] Speaker 03:
The police report doesn't say how many witnesses did not identify.

[00:13:09] Speaker 03:
It just says several.

[00:13:11] Speaker 03:
So that's all we have.

[00:13:13] Speaker 04:
And... Could I ask, is the waiter who took off running out the door, is that person the person who was asked to identify Chris in the perimeter?

[00:13:22] Speaker 04:
Do we know that?

[00:13:23] Speaker 03:
We don't know that.

[00:13:28] Speaker 03:
I also want to note that Hall is not an arbitrary standard.

[00:13:32] Speaker 03:
and that in Holmes itself, the Supreme Court cited Hall with approval and said, these are the types of rules that several state courts have, and they cited all over the states various rules.

[00:13:47] Speaker 03:
And Hall was specifically listed in that one star footnote.

[00:13:51] Speaker 01:
So it's not- Do you think that Hall is less protective than the federal standard?

[00:14:00] Speaker 03:
I don't know what the federal standard is.

[00:14:03] Speaker 01:
Well, for example, I think in Espinoza, we've disapproved of what Hall said, and that's not binding, of course, but the question, do you think they're different?

[00:14:18] Speaker 03:
I can't give you a good answer to that.

[00:14:21] Speaker 03:
I would be speculating there because I just don't know what it exactly is.

[00:14:25] Speaker 03:
I can say here, whatever the standard is, this evidence was so speculative and remote because

[00:14:36] Speaker 03:
even if it was Chris.

[00:14:37] Speaker 03:
And we don't really know for sure if it was Chris.

[00:14:40] Speaker 03:
It could have been Chris.

[00:14:42] Speaker 03:
It could have been someone else saying he was Chris.

[00:14:44] Speaker 03:
It could have been petitioners saying he was Chris.

[00:14:47] Speaker 03:
And all of those, then you go down all these various little rabbit holes about who that was.

[00:14:52] Speaker 03:
And then the fact that whoever it was, several individuals said it was not him.

[00:14:58] Speaker 03:
Now, if it was petitioners saying he was Chris,

[00:15:01] Speaker 03:
The fact that his DNA was there is a problem for him.

[00:15:04] Speaker 01:
That's really the only direct evidence in the case, isn't it?

[00:15:10] Speaker 03:
The DNA evidence?

[00:15:11] Speaker 03:
Well, we have the DNA evidence, and then we have the fact that 20 years later, Mr. Carson Smith did choose him.

[00:15:20] Speaker 03:
He said maybe.

[00:15:21] Speaker 03:
That's true.

[00:15:22] Speaker 03:
But there were six different people, and we don't have that in there.

[00:15:25] Speaker 03:
But out of the six,

[00:15:27] Speaker 03:
He picked petitioner, who was one in trillions.

[00:15:29] Speaker 03:
Yeah, who looks like his brother, apparently.

[00:15:31] Speaker 03:
Pardon?

[00:15:32] Speaker 01:
Who looks like his brother.

[00:15:33] Speaker 03:
Looks like his brother.

[00:15:33] Speaker 03:
But we don't even know that, right?

[00:15:35] Speaker 03:
Like, we can just guess.

[00:15:37] Speaker 01:
On the other side of the ledger, you've got...

[00:15:39] Speaker 01:
Chris picked up at the scene wearing the same clothing, at least allegedly, prior crimes that matched the modus operandi of this crime, and DNA evidence that only dealt with unrelated people.

[00:15:56] Speaker 01:
So that was his only shot at getting an acquittal, don't you think?

[00:16:02] Speaker 01:
By getting in this evidence?

[00:16:03] Speaker 03:
He did testify.

[00:16:04] Speaker 01:
He said he wasn't there.

[00:16:05] Speaker 01:
He was in a different part of the state.

[00:16:09] Speaker 03:
He said he was in LA, and he did have a few witnesses to help him with that.

[00:16:16] Speaker 03:
This would not be critical evidence, because it would be another.

[00:16:22] Speaker 04:
What wouldn't be critical evidence, exactly?

[00:16:24] Speaker 03:
Well, the fact that Chris was stopped and released.

[00:16:28] Speaker 04:
And had this criminal history?

[00:16:31] Speaker 03:
Well, the criminal history is 10 years earlier.

[00:16:38] Speaker 03:
And this modus, it also doesn't mean, and the modus operandi, we're not even sure that could even be admitted.

[00:16:46] Speaker 03:
And the fact modus operandi, it's not the most unusual words to say.

[00:16:52] Speaker 03:
And it's his brother.

[00:16:53] Speaker 03:
So who knows?

[00:16:54] Speaker 03:
Maybe Chris and Charles did some robberies decades earlier.

[00:16:58] Speaker 03:
We don't know that either.

[00:17:00] Speaker 03:
And it could have been that the robbers were Chris and Charles.

[00:17:04] Speaker 03:
We don't know that.

[00:17:05] Speaker 03:
We're just speculating about all of these possibilities.

[00:17:08] Speaker 04:
So what do we do about the fact that the government's case against the defendant here, this Mr. Luckett, was also really thin and really stale?

[00:17:16] Speaker 04:
Does that change how we look at this now about the importance of his ability to give it his best shot and make sure the jury heard this evidence?

[00:17:24] Speaker 03:
That would be the exact opposite of what Holmes says.

[00:17:29] Speaker 03:
Because Holmes says, right, Holmes is the one where

[00:17:33] Speaker 03:
It was the confessions.

[00:17:35] Speaker 03:
And they said, well, we're not going to let these confessions in because the prosecution's case is so strong.

[00:17:40] Speaker 03:
We're not supposed to look at the strength of the evidence.

[00:17:44] Speaker 03:
I'm sorry.

[00:17:45] Speaker 03:
We're not supposed to look at the strength or weakness of the whole case.

[00:17:48] Speaker 03:
That's the jury's job.

[00:17:50] Speaker 04:
OK, but you've just been telling us about the weakness of the presentation.

[00:17:55] Speaker 04:
So maybe I'm missing the import of your comments today.

[00:17:58] Speaker 03:
I'm sorry.

[00:17:59] Speaker 03:
The weakness.

[00:18:02] Speaker 03:
of this police report.

[00:18:04] Speaker 03:
That is what Holmes says you do, is you look at the evidence itself.

[00:18:11] Speaker 03:
You look at what was excluded.

[00:18:13] Speaker 03:
And what is very interesting is that in the trial court, trial counsel didn't even try to say this was Chris who did it.

[00:18:21] Speaker 03:
He said, we're not trying to say that.

[00:18:24] Speaker 04:
That's a different argument.

[00:18:26] Speaker 04:
That's when we were .

[00:18:27] Speaker 04:
.

[00:18:27] Speaker 04:
.

[00:18:27] Speaker 04:
I think Judge Bayer was teasing out a minute ago that there needs to be evidence of direct involvement.

[00:18:33] Speaker 03:
Circumstant .

[00:18:34] Speaker 03:
.

[00:18:34] Speaker 03:
.

[00:18:34] Speaker 03:
direct?

[00:18:35] Speaker 04:
I'm not talking about direct evidence.

[00:18:36] Speaker 04:
I mean, evidence of direct involvement, which could be circumstantial.

[00:18:40] Speaker 04:
I think your point is that he didn't have that.

[00:18:43] Speaker 03:
There needs to be a link.

[00:18:45] Speaker 03:
I think that's the word, is the link.

[00:18:49] Speaker 03:
And there's not a link here.

[00:18:50] Speaker 03:
There's not a link between Chris or someone who said he was Chris being stopped and then released, which I find very interesting that petitioners council does not talk about the fact that

[00:19:02] Speaker 03:
He was released.

[00:19:04] Speaker 03:
He was released.

[00:19:05] Speaker 03:
And Smith did identify someone else.

[00:19:07] Speaker 03:
So not everybody was released.

[00:19:09] Speaker 03:
But several witnesses didn't identify him the night of the crime.

[00:19:14] Speaker 03:
But we don't even know who that was, right?

[00:19:17] Speaker 01:
But on the other hand, the defendant has a right to present his theory of the case as long as there's some evidence supports it.

[00:19:26] Speaker 01:
And there was some evidence to support this theory.

[00:19:29] Speaker 01:
But what's interesting is we don't... And you basically say, well, no, they couldn't prove it, but that's not what our standard is.

[00:19:36] Speaker 03:
But what's interesting is in the trial court, that wasn't really his theory.

[00:19:43] Speaker 03:
And what he really wanted before the jury, which was presented before the jury, was that several witnesses, several people were stopped in that perimeter.

[00:19:53] Speaker 03:
They create a perimeter, several people were stopped,

[00:19:58] Speaker 03:
who looked like the perpetrators and several witnesses to the crime went and said they were not the right person except for that one person who Smith identified.

[00:20:12] Speaker 03:
So all of that, the jury did get to hear.

[00:20:16] Speaker 03:
They did get to hear this idea that several people were stopped and released.

[00:20:22] Speaker 03:
And the only thing they didn't hear is that one of those people who was stopped and released

[00:20:28] Speaker 03:
was Petitioner's brother.

[00:20:30] Speaker 01:
But the problem is… It also is.

[00:20:33] Speaker 01:
The DNA evidence, which was the strongest, dealt with people who were unrelated, and that explained the DNA.

[00:20:40] Speaker 01:
I mean, that was his only shot, it seems to me.

[00:20:43] Speaker 03:
But we don't know that.

[00:20:44] Speaker 03:
And I guess the other piece about- We don't know what.

[00:20:47] Speaker 03:
But we don't know the significance of the relationship or not related.

[00:20:52] Speaker 03:
And we don't know how closely the two brothers were related, if they were full brothers or half.

[00:21:00] Speaker 03:
That's not in the record as well.

[00:21:03] Speaker 03:
So it would all be speculative, really.

[00:21:07] Speaker 01:
It would undermine the expert report because you say, well, now if they were related, what's the difference?

[00:21:14] Speaker 01:
That's a different cross-examination than occurred because they couldn't put in the evidence of there might be somebody related at the crime scene.

[00:21:22] Speaker 03:
And we don't know that.

[00:21:23] Speaker 03:
And the fact that Chris, even if it was Chris, but he didn't do it, that doesn't mean that his brother, petitioner, wasn't there.

[00:21:33] Speaker 01:
If Chris was there... Is there any evidence in the record that he was in the vicinity, the defendant?

[00:21:40] Speaker 03:
That Charles... Charles.

[00:21:43] Speaker 03:
No.

[00:21:44] Speaker 03:
At the time.

[00:21:45] Speaker 03:
No.

[00:21:46] Speaker 03:
No.

[00:21:46] Speaker 03:
Nobody identified him.

[00:21:48] Speaker 01:
I don't understand your theory that it could have been Charles there.

[00:21:53] Speaker 01:
Is there any evidence that supports him there other than the DNA evidence?

[00:21:58] Speaker 03:
with just the fact that he told the police in his interview that he had given other people's names when he had been stopped before by the police.

[00:22:07] Speaker 03:
He told the police that.

[00:22:08] Speaker 03:
He'd given, and that's in my brief, doesn't it?

[00:22:11] Speaker 03:
But in his interview, he said, oh yeah, I've given various names when he gets stopped by the police.

[00:22:22] Speaker 04:
Anything further?

[00:22:23] Speaker 03:
I have nothing else.

[00:22:24] Speaker 03:
Thank you.

[00:22:25] Speaker 04:
Anything further?

[00:22:26] Speaker 04:
No, it looks like we don't have any further questions.

[00:22:28] Speaker 04:
Thank you, counsel.

[00:22:48] Speaker 02:
Okay, I apologize for not having the site earlier.

[00:22:50] Speaker 02:
I have too many binders and I brought the wrong one up.

[00:22:54] Speaker 02:
The request for judicial notice where trial counsel described the prior convictions of Chris was at ER 125.

[00:23:00] Speaker 02:
I think I want to just, there is no evidence whatsoever that Carson Smith saw, was presented with Chris Luckett.

[00:23:12] Speaker 02:
No evidence that he failed to identify him.

[00:23:16] Speaker 02:
Several witnesses did, but there's no evidence that Carson Smith was one of them.

[00:23:20] Speaker 04:
Right.

[00:23:21] Speaker 02:
Right.

[00:23:24] Speaker 02:
And so I just wanted to make that clear.

[00:23:27] Speaker 02:
My opposing counsel's argument that if Chris was there, that doesn't mean Charles was there.

[00:23:31] Speaker 02:
I don't, you know, there were only two robbers.

[00:23:37] Speaker 02:
One of them was identified as being Harvey Brumfeld.

[00:23:40] Speaker 02:
So I don't, you know, to the extent that counsel is suggesting that

[00:23:44] Speaker 02:
Chris Luckett, who has a history of these kinds of robberies, just happened to be right by the Sizzler restaurant, but that it was really Charles Luckett who committed the robbery, that to me is really nonsensical and speculative.

[00:23:56] Speaker 04:
Is it right that the record that we have, it's pretty spotty, that the series of burglaries that Chris, I think he pled no contest to them and was convicted of them beyond a reasonable doubt, it's quite a number, is it correct that all of them took place 10 years earlier?

[00:24:15] Speaker 02:
That is, as far as we know, those are the robberies that trial counsel asked the court to take judicial notice of.

[00:24:22] Speaker 04:
And they all occurred in a short period of time.

[00:24:24] Speaker 04:
It was quite a spree, or at least that's the way it looked in the record.

[00:24:27] Speaker 04:
And you think that was 10 years prior to the Sizzler?

[00:24:29] Speaker 02:
That's correct.

[00:24:30] Speaker 04:
All right.

[00:24:31] Speaker 02:
That's correct.

[00:24:32] Speaker 02:
And so what he had been doing since then, we don't know whether there's no evidence of it because trial counsel didn't properly investigate it once the court

[00:24:41] Speaker 02:
said you can't present evidence of Chris or whether he had been living a law-abiding life since that time.

[00:24:47] Speaker 04:
So Chris has passed away?

[00:24:48] Speaker 04:
Is that right?

[00:24:49] Speaker 02:
Chris has passed away.

[00:24:49] Speaker 04:
Do we know when that happened?

[00:24:51] Speaker 02:
It happened before the trial in this case.

[00:24:54] Speaker 02:
That's the only information I have about that.

[00:24:56] Speaker 02:
That's all I can tell too.

[00:24:57] Speaker 04:
Okay.

[00:24:58] Speaker 04:
Thank you.

[00:24:59] Speaker 01:
But at the end of the day, don't you have to show that Hall is an arbitrary rule?

[00:25:07] Speaker 02:
We don't have to show that Hall is always an arbitrary, you know, that Hall has to be thrown out.

[00:25:15] Speaker 02:
What we have to show is that in this case, the application of Hall deprived Mr. Luckett of his right to present what Your Honor rightfully referred to as really his only chance, his only defense.

[00:25:27] Speaker 01:
Thank you.

[00:25:29] Speaker 02:
Thank you.

[00:25:34] Speaker 04:
We're going to take, I thank you both for your advocacy in that case.

[00:25:37] Speaker 04:
We'll take that case under advisement.

[00:25:38] Speaker 04:
We're going to stand in recess for five minutes before we hear the rest of the calendar.