Norma Novelli befriended Lyle Menendez while Lyle was in the Los Angeles County Jail, and for 2 1/2 years she taped phone calls she had with him.
The prosecution wanted to introduce the so-called “Tape No. 25” as evidence in their case-in-chief in the second trial. The content of that tape involves statements of Lyle related to certain testimony of Dr. Oziel during the first trial while Oziel was still testifying. A transcript of the conversation between Lyle and Novelli can be found in Novelli’s book “The Private Diary of Lyle Menendez,” pp. 135-144. It can also be heard on the audio version of the book which contains the actual voices of Lyle and Novelli. A transcript of the conversation can be found here:
Essentially, Lyle talks of having to fabricate a story about being blackmailed by Oziel. “I’m just gonna have to make something up,” Lyle says on the tape. Although there’s no evidence that Lyle did anything to follow through on the discussion contained in the tape, it does demonstrate a willingness on his part to fabricate evidence.
The defense wanted to have the Novelli tapes ruled inadmissible, contending they were illegally recorded.
Novelli testified in May of 1995 that Lyle freely gave his consent to being recorded because the two of them planned to write a book together. Judge Weisberg ruled, also in May of 1995, that the prosecution could introduce tape No. 25, because Lyle freely gave his consent to being recorded by Novelli.
On August 29, 1995, Judge Weisberg addressed the issue again, and ruled that tape No. 25 could not come in is as evidence in the prosecution’s case-in-chief in the second trial, but didn’t rule out that it could come in in rebuttal. In a Minute Order dated August 29, 1995, Judge Weisberg wrote:
“The content of the tape involves statements of Lyle Menendez related to certain testimony of Dr. Oziel presented by the People. These statements were made during the first trial while Oziel was still testifying. No evidence has been presented to the Court that Lyle Menendez did anything to follow through on the discussion contained in tape No. 25. Further, the People have stated that they will not call Dr. Oziel during their case-in-chief. When the proposed redactions are combined with the fact that the jury will neither see nor hear Oziel’s testimony in the People’s case-in-chief, the probative value of this evidence is substantially outweighed by its potential danger for confusion of issues and of misleading the jury. Further, an undue consumption of time would be required to place the statements in proper context in relation to Oziel’s testimony from the first trial. The defendants’ objection under Evidence Code Section 352 is sustained and the People will not be permitted to use this tape in their case-in-chief. This analysis only applies to the People’s offer of this evidence in their case-in-chief.”
During a hearing on January 5, 1996 on the Erik Menendez defense’s request to play for the jury the videotapes of Lyle’s former testimony from the first trial, Judge Weisberg read aloud the Minute Order, and then stated:
“The Court: The last sentence was included in my ruling so that the parties would be aware that this type of evidence, this evidence, could be the subject of a new offer by the prosecution in rebuttal for purpose of impeachment.
At this stage, the jury knows more about Oziel than they did in the People’s case-in-chief. They know that through the testimony of Erik Menendez. That testimony is not yet completed. And also, assuming testimony is offered, former testimony of Lyle Menendez is offered by Erik Menendez, they’ll know more about Dr. Oziel and his relationship with the defendants depending upon how much testimony is admissible and received in evidence from the former testimony of Lyle Menendez about Dr. Oziel.
Ms. Abramson: We proposed to edit it all out, Your Honor.
The Court: I know you do, but the People have a right to have it in. And if that is in, or a portion — a good portion of it is in, then there would be the factual basis and the foundation for the jury to understand what it was that Lyle Menendez was talking about in this audiotape. Until Erik Menendez’ testimony is completed, until Lyle Menendez’ testimony is — former testimony is offered and the extent of reference to Oziel and his relationship to Oziel is before the jury, I won’t be able to make a final decision on this. But it seems to me that the People would be in a much stronger position to argue that this evidence would be admissible for the purpose of impeachment that they were prior to the trial, prior to any evidence offered regarding the relationship of Oziel to the defendants, none of which was brought out during the People’s case-in-chief, and has only come in through the testimony of Erik Menendez so far and would be brought in further through the testimony of — or former testimony of Lyle Menendez. So, again, it could, depending on how things develop, it could develop that this evidence, tape No. 25 as it was identified, could be proper impeachment of the former testimony of Lyle Menendez.”
As mentioned earlier, tape No. 25 was the only Novelli tape the prosecution sought to introduce in their case-in-chief. However, during the on the motion to play the videotapes of Lyle’s former testimony, the following colloquy took place:
“The Court: Did the People intend if the testimony — former testimony of Lyle Menendez was offered, to limit yourself to just that tape? There was some indication last week when we discussed this, or two weeks ago, that you intended to use more.
Mr. Conn: Yes. The People initially proposed that we use a specific tape in our case in chief, and we felt as part of our case in chief that would be admissible. However, if the testimony of Lyle Menendez is presented and we are permitted under Evidence Code Section 1202 to present impeaching material, then that may very well exceed the material that we intended to present in our case in chief. So I will have to review the tapes once again after the former testimony of Lyle Menendez has been presented before the jury to determine what is going to be presented.”
One thing of interest, to me anyway, in Novelli’s book is the following:
On page 120 of the book, in an entry dated “July 24, 1993, afternoon”, Lyle says:
“I don’t know if you’ve ever fired a shotgun, but its [sic] a joke. I was like really depressed after I went to the Range because I figured these things are pretty useless. If somebody is going to come in and get me or something, I’m not going to have time to whip out a shotgun. So because of that, I still wanted to get the handgun. So maybe I thought I could get one illegally or borrow one from a friend. I went the next day to one of my brother’s friends, whom I didn’t know and tried to get a handgun, and he didn’t have one. He’ll be testifying to that effect too. So I said, f**k it, then we’ll just go with what we have.”
Lyle’s statement is interesting. Although Lyle doesn’t state a name, just his “brother’s friend, whom I didn’t know,” the story sounds awfully similar to the one in the Amir “Brian” Eslaminia letter. (https://menendezcase.com/2019/04/24/eslaminia-letter/)
As Erik Menendez testified in the second trial, the story about getting a gun from Brian was a fabrication, it never happened. So in the very, very likely event (almost virtual certainty), that Lyle is referring to Eslaminia it would mean Lyle is telling Novelli a false story, which would further demonstrate Lyle’s penchant for lying.
Lyle said in reference to his brother’s friend that, “He’ll be testifying to that effect too.”
Let’s examine that statement a little further.
Opening statements in the first trial took place on July 20, 1993, which means Lyle made the statement to Novelli four days into trial.
In the second trial, Erik was asked on cross-examination:
“And it is also your testimony that in all the times that Mr. Eslaminia came to visit you in jail, he never once mentioned a plan or discussion between himself and your brother to provide false testimony; is that correct?”
“Brian never visited me. Brian visited me once after that letter was sent out, about eight months after that letter was sent out, after Lyle had already called Brian and told Brian that Lyle was going to testify and that we were going to go with the truth. And so I never saw Brian or talked to him on the phone after that letter was sent out before Lyle called him.”
Erik also testified:
“Lyle was never confident that I would go along with it. He was trying hard to get me to — not to testify to the things I said I was going to and to protect dad. He wasn’t confident about it, and he eventually called Brian and told him not to testify; that he was going to go with the truth. And Brian never testified in the first trial.”
Here, Erik is saying that Lyle “called Brian and told him not to testify.” As to when Lyle called Brian, Erik said: “Brian visited me once after that letter was sent out, about eight months after that letter was sent out, after Lyle had already called Brian and told Brian that Lyle was going to testify.”
The letter from Lyle to Eslaminia was post-marked July 9, 1991. That’s an undisputed fact.
Eight months after July of 1991 would be March of 1992. Under the very, very strong assumption that the friend Lyle referred to in the July 24, 1993 statement was Eslaminia, why is Lyle telling Novelli, after the trial had started on July 20, 1993, that the friend “will be testifying” about the handgun incident if he (Lyle) had called the whole thing off no later than March of 1992?
I submit that without a doubt Lyle was referring to Eslaminia on page 120 of Novelli’s book. If the friend Lyle referred to wasn’t Eslaminia, then who was it? Exactly how many of Erik’s friends did Lyle try to get a handgun from on August 19, 1989, the day before the killings? If it’s not Eslaminia that Lyle referred to, then why did this other friend never testify as Lyle said he would?
Who’s lying here? Lyle? Erik? Both?
Take your pick.