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www.lawyerdude.s5.com/6416pt3.html Contains the factual history of the case with verbal (not electronic) link to the transcript. Contains the chronology of the case.

Conviction of 1 count misdemeanor possession of 2 doses of LSD consumed before police arrived. No priors. First drug offense. Pretrial diversion denied. Conviction date: 1 April 1992. Jury trial following grand jury indictment following dismissal of complaint on eve of preliminary hearing. Guilty verdict on 1 count of Health and Safety Code 11377a - possession of LSD. (Acquittal on 2 counts: 1)conspiracy and 2)offering LSD to a minor.) The trial judge determined that the conviction is a misdemeanor. Trial Judge Henson placed defendant Palaschak on probation with the condition that he serve 90 days in jail. Palaschak now appeals.

Appellant seeks reversal of denial of suppression motion. Appellant Palaschak has standing under Wong Sun to contest the admissibility of the LSD surrendered by Jessica Jobin, the testimony of Jessica Jobin, and all other fruits of the unlawful intrusion and invasion of Palaschak's privacy. The police entry through the outer door was unlawful. The police entry through the inner door was unlawful, without warrant, and without probable cause, there having been no report of a crime nor information amounting to Draper probable cause that a crime was likely to occur in the future. The proffered exigency, fear for the rape of Jessica, was a obviously a pretext because 1) Officer Matz admitted that Matz's "concern" was "the fact that there's a possibility that there was drugs being used in the office" (Oct 31 49:11). Officer Matz admitted (Oct 31 43:12) that he was "checking on ... a female who might be using drugs as opposed to ... [investigating] a sexual assault"); and 2) the police did not leave after Jessica Jobin, the supposed rape victim, told Matz in private in the hall that "everything was all right" (Oct 31 37:5). The police detained Palaschak and Jobin beyond what was justified by the exigency of rescuing a victim in peril - which rescue was a pretext, the real motive for the visit being drug pursuit. Officer Dawson coerced the surrender of the LSD by threatening "[We'll] find it anyway" (Oct 31, 56:11) obviously implying that she would search the place - consistent with Jessica Jobin's testimony twice that Officer Dawson threatened to "tear this place apart" (Nov 4 5:23) and (RT 150:15) unless Jessica Jobin surrendered the LSD. The reporter’s transcript mistakenly omitted day one of the 2 day suppression motion. Day one was October 31, 1991. Palaschak informed appointed Counsel Creig Dolge of the problem but Dolge failed to augment the record. Palaschak attempted to augment the record but we don’t know if he was successful because the court of appeal made no comment on the suppression issue, but common sense tells us that the California Supreme Court does no allocate enough time in a minor case like this to independently look for special transcripts outside the reporter’s transcript.

As a separate independent grounds for appeal, Jobin's testimony which is essential for Palaschak's conviction must be stricken pursuant to Penal Code §1111 - resulting necessarily in reversal 2 of Palaschak's conviction.

As a separate independent grounds for reversal, California's LSD law suffers a multitude of constitutional infirmities which are fatal when applied to Palaschak's situation.

Officer David Matz, the arresting officer, is an LSD expert with 24 years of experience - most of it for the DEA - Drug Enforcement Agency. He is an LSD expert having watched LSD being manufactured in clandestine drug labs undercover in Chicago, New York, and Los Angeles (RT 256:13); he taught in the FBI academy (CT 249, 250).

Jessica Jobin had her own set of keys to Palaschak's car (RT 118:7) although she told the grand jury otherwise (RT 118:11).

Jessica Jobin testified before the grand jury that she obtained the LSD on May 3 but she recanted that testimony at trial.

Jessica Jobin testified before the grand jury that she kept the LSD is a secret compartment in her purse during this weekend but later recanted this testimony (RT 132:25-133:12).

Jessica Jobin did not work on Monday May 6. Jessica Jobin recanted the story she told investigator Danny Miller in July 1991 that Palaschak asked Jessica on Monday May 6 if she had gotten any drugs (RT 119:20) but she told the grand jury that she did not work on Monday May 6 (121:1). Jessica had a dentist appointment "every day" that she kept cancelling (RT 121:4).

On the evening of Tuesday May 7, 1991 Jessica Jobin borrowed Palaschak's car and left him stranded for approximately 4 hours. (Defense exhibit A - Letter by Palaschak written the following morning, authenticated by Jessica Jobin at RT 159:11- 159:27). Jessica had her own set of keys because she routinely used Palaschak's car to run errands for him. (RT 82:12-82:22) Jessica testified that it was her intention to get 1 or 2 hits of LSD as a birthday present for Palaschak; Jessica testified that she told this to Officer Matz on the day of the arrest (RT 112:8-113:5). Jessica told an incredible story of driving up Ventura Avenue until she found a guy with long hair who she had never seen before who agree to meet her 15 minutes later and then gave her 50 doses of LSD for free (RT 127-130). When she returned Palaschak's car to the office 4 hours later, her boyfriend, Ricky, was with her. (RT 89:8) Upon cross examination it was obvious that she had been with Ricky because her story about arranging to meet him at the office contradicted her previous testimony that she had not called anybody from the avenue (RT 125:10). Furthermore, it is obvious that they would not arrive simultaneously at the office as they did unless he was following her because they had been together. She did not mention anything about LSD to Palaschak (RT 87:2) nor did she say anything to 3 Palaschak (RT 88:6) nor did she return his car keys (RT 87:25) although she had testified to the contrary before the grand jury (RT 118:4).

Jessica Jobin testified at trial that on the morning of Wednesday May 8 she gave Palaschak a birthday card containing 2 doses of LSD. She testified that she came to work around 10:30. Here is what she did:

Answer by Jobin: "I was there for a couple of hours, and then I went to lunch. No, I'm sorry, that was - - We're talking about Wednesday, aren't we?"

The testimony of Schwentner was that Jessica Jobin was only at the office "the last few minutes or so" of

May 8 (RT 184:20). Schwentner testified that Jessica was at the dentist on the afternoon of May 8 (RT

184:23). Jessica testified that "Considering it was so long ago, I don't remember everything exactly."

(RT 111:8) She also testified that she opened champagne May 8 (RT 160:10). However, on May 9

Jessica Jobin told Officer Matz that she had been drinking champagne that day, May 9 (Oct 31 37:5).

On the afternoon of Wednesday May 8, 1991 defendant Palaschak met Melissa Schwentner,

then age 17, (dob: 31 Jan 1974) who responded to an ad in the newspaper and applied to work at

Palaschak's office. It was Palaschak's birthday. (RT 181:17) Although Melissa had been convicted of

stealing money from the bank account of her boyfriend's Mother (RT 180,14), and using stolen credit

cards to buy $1,982 in services at the Doubletree Hotel (RT 217:19 - 218:4) she did not ever disclose

that to Palaschak. (RT 217:11-14) Palaschak hired her immediately and she answered the phones in the

absence of Palaschak's regular secretary, Jessica Jobin, (RT pages 179-182) who was at the dentist (RT

On May 9, 1991 Melissa Schwentner arrived at work at 8 a.m. (RT 184:24) About 10:30 am

Palaschak instructed Melissa to drive to pick up Jessica Jobin and bring her to work. (RT 186:3). Soon

after arriving at work Jessica Jobin departed for lunch at Acapulco Restaurant with an unnamed friend.

(RT 186:24) (RT 94:8). On May 9, Palaschak and Melissa Schwentner went to lunch at Bobby McGees

When Palaschak and Schwentner returned from lunch Schwentner used Palaschak's car to pick

up his shirts at the cleaners (RT 190:24). Melissa ran some other errands but did not hear anybody talk

about LSD either before or after lunch (RT 191:12 - 192:5) Regarding their conversation Schwentner

testified that Palaschak said that LSD should be legalized. Schwentner testified that Palaschak said

nothing in the office before lunch about drugs or LSD (RT 191:14). Schwentner testified that even after

lunch on May 9 Palaschak said nothing about drugs or LSD (RT 191:19) until she returned to find him

and Jessica giggling. At no time did Schwentner testify that Palaschak had said anything during lunch or

before or after lunch about receiving a birthday card with LSD in it - only Jessica Jobin testified about the

birthday card. Jessica Jobin testified (RT 132,133) that she was substantially mistaken in her testimony

before the grand jury that she kept the LSD in a secret compartment in her purse at her home on the day

after she got the LSD - and that much of her testimony before the grand jury was mistaken.

Melissa went to Ralphs grocery store to buy a money order but she testified that she did not

Jessica Jobin testified that she gave Palaschak a birthday card containing 2 doses of LSD. The

testimony is not clear when she gave it to him. The testimony of newspaper reporter Gary Gorman was

that Palaschak said that he obtained the drug on the afternoon of May 9. Jessica Jobin's testimony was

that she gave it to him on May 8 - although she also testified that she opened champagne on May 8 and

she testified that they opened champagne right before she gave Palaschak the LSD (CT 95:14).

laughing (RT 194:5). Melissa Schwentner did not see Palaschak take the LSD (196:26) and that it did

not show at 1:30 (RT 229:16) and that Melissa did not know that they had taken LSD until later. Jessica

Jobin testified repeatedly that she believed Melissa Schwentner was there laughing all the while when

Palaschak and Jobin took the LSD (RT 113:6-114:1) (RT 103:25) but this testimony is inconsistent with

her statement just lines earlier (RT 103:22) that Palaschak told Melissa that Palaschak and Jobin took

LSD; Palaschak would not have had to tell Melissa about it if Melissa had been there. Jessica's inability

to correctly recall who was there when Jessica saw Palaschak "possess" the LSD in his hand

before putting it in his mouth casts aspersions upon her veracity - but defense argues that this

critical element of the crime cannot be proven without corroboration of the critical element -

WHO, if anybody, exercised dominion and control sufficient to constitute possession (as

distinguished from mere use). The inconsistency also in consistent with a witness motivated to

justify her deal with the police - which is the very reason for Penal Code §1111.

There were no clients that afternoon and the instructions were to keep the outer door locked

(Nov 4 3:20). When Melissa left she "thinks" that she locked the outer door (Oct 31 19:17). Melissa's job

was to "babysit" Palaschak and Jobin while Palaschak and Jobin took the LSD (RT 148:15). Melissa

Schwentner testified that Palaschak asked if she "wanted to join them" (RT 197:2). Prosecutor Gibson

asked Melissa "Join them in what?" (RT 197:3). Defense Counsel Schwartz objected that the question

Judge McNally asked Melissa Schwentner "Did he say anything further? Did he just say join

them?" Melissa Schwentner answered: "He asked if I wanted - - 'Do you want to fry on acid, too?'".

Melissa attributed the term "frying on acid" to Palaschak but when questioned about this terminology

Melissa said "I don't want to answer his questions" (RT 216:14) and walked off the witness stand (RT

216:18). Schwentner testified that she consumed no LSD on May 9 and that she drank no

Palaschak put his arm around Jessica Jobin. (200:14) Schwentner took their photograph in this

position (Oct 31 24:25). Jessica Jobin was laughing when she told Palaschak to take his arm off her (RT

200:18). Jessica removed Palaschak's arm from around her (Nov 4:27) but not before posing for a

photograph in that position photographed by Melissa Schwentner (Oct 31 23:22) and seized under

warrant by the prosecution (Nov 4 33:7) but never used by the prosecution - although it was shown in

television on Inside Edition along with a photo of Jessica Jobin simulating masturbation on the pink

neon tube in Palaschak's office. This pink tube was the "pink light" that Palaschak described seeing in his

discussion with police which the police characterized as an hallucination; if the neon tube is an

hallucination then we all share this hallucination. Jobin testified that Jessica was not afraid of Palaschak

and that he was "Like a big puppy dog" (RT 146:15). Both Jessica and Melissa testified that Douglas did

not flirt with Melissa Schwentner (RT 147:25)(RT 209:18) although Melissa admitted at trial that she lied

to her friend saying that Palaschak had made an romantic advance on her (RT 248:17). Jessica Jobin

testified that she was never crying at anytime on the afternoon of May 9 (RT 115:26) and (116:5).

Melissa Schwentner testified that Jobin was "practically crying" and later (RT 225:12) "whining and

crying". Attorney Schwartz confronted Schwentner with the fact that Jessica had just testified that she

did not cry that day. Schwentner, caught in a lie, then testified (RT 225:16): "I mean when someone cries

- - they kind of whine about it." Jessica enjoyed working for Palaschak and signed the card "Love,

Palaschak asked Jessica to stay late (RT 200:26). Jessica asked Melissa to stay with them.

Schwentner says that she offered Jessica a ride home (Oct 31 26:7) and Jessica declined the

invitation and stayed in the office with Palaschak (Oct 31 26:9). Jessica testified that Schwentner did not

Jessica Jobin and Melissa Schwentner went to the restroom together (RT 105:10)(RT 199:7).

Jessica experienced symptomatic generalized anxiety just walking down the hall (199:22). Jessica

Jobin's testimony was that she did not give the LSD to Melissa in the bathroom but in the inner office

while Palaschak was there (RT 105:19). No money was exchanged because Melissa had purchased

cigarettes for Jessica earlier in the day while running errands. At some time Jessica Jobin gave 2 doses

of LSD to Melissa Schwentner who wanted the LSD for a party that Schwentner planned to attend on the

weekend (RT 116:19 - 116:25)(RT 231:24). Melissa testified (RT 209:25) that Jessica did not sell the

LSD to her; but when questioning resumed at trial in the afternoon Melissa then testified (RT 236:3) that

Jessica did indeed sell her the LSD. When confronted at trial with this self-contradiction, Melissa

became angry and said that she could not remember. When Melissa left the office on May 9 she "thinks"

locked the outer door. (Oct 31 19:17) Schwentner did not consume the 2 doses of LSD and testified that

At approximately 4:50 pm Schwentner drove to the police station and told desk Officer Cindy

Turner that a lawyer and his secretary were under the influence of LSD. Melissa Schwentner testified

that Desk Officer Turner said "Let me guess. Is it Palaschak?" (Oct 31 15:18). Before the grand jury

Melissa Schwentner testified that she told Turner that Melissa "thought [Jessica] was going to get raped

or something" (CT 211:9) but she did not so testify at the suppression hearing or at trial - and that

is why Judge McNally committed prejudicial error in by reading the grand jury transcript before ruling on

the suppression motion and thereby introducing evidence - written, more readily imprintable on the mind

- given without benefit of cross examination. Officer Cindy Turner never did appear for the suppression

hearing despite having been subpoenaed (Oct 31 63:13) and had already quit the police force before the

suppression hearing. If indeed Desk Officer Cindy Officer concluded that probable cause existed it could

not legally have been based on what Melissa Schwentner testified at the suppression hearing or at trial -

or even before the grand jury. When asked what prompted her to predict rape, Melissa Schwentner told

the grand jury "Because if he was acting that way toward her with me around, I mean, I'd (sic)with hate to

see the way he was acting when I left" (CT 211:15). Matz testified that Desk Officer Cindy Turner used

the word "rape" to describe the situation (Oct 31 29:14). Although Officer Matz asked to speak to

Schwentner, she had already departed the police station (Oct 31 29:28). Officer Matz admitted (Oct 31

43:13) that Jobin (and necessarily by implication, Palaschak also) was a drug target. The dispatch log

records the response as "narcotics". Matz testified that he could easily have simply telephoned

Jessica at Palaschak's office to check on her welfare but did not do so (Oct 31 50:17). Officer

Matz admitted on direct examination that the "concern" was "the fact that there's a possibility

that there was drugs being used in the office" (Oct 31 49:11). Officer Robin Dawson was dispatched

to Palaschak's office at 5:11 (Oct 31 52:15). Ventura police officers David Matz and Robin Dawson drove

separate cars to Palaschak's office at approximately 5:20. Matz and Dawson chatted in the parking lot

for several minutes. Matz and Dawson entered the building at 6633 Telephone Road, took the elevator

to the 2nd floor. The elevator opened at Palaschak's door at 5:30 or 5:45 (Oct 31 at 31:9) at suite #216

which had Palaschak's name on the door. This door with "216" and Palaschak's name on it is called the

"outer door" throughout the trial although, it is actually an inner door, also. Behind this door with

Palaschak's name on it was Palaschak's library and a table and 2 chairs. At the back of this small room

was the "inner door". Matz and Dawson walked in the outside door which was not locked; in doing do

they violated Palaschak's right to privacy. They listened outside the inner door to Palaschak's inner

office. Matz may have put his ear to the inner door (Oct 31 57:13). They knocked and entered and

found Palaschak and Jobin sitting on the sofa fully clothed. Jobin asked the police twice why they were

there. Matz and Dawson failed to disclose their true purpose: drugs; and no Miranda rights were read.

Palaschak may have also asked why the police were there. Officers found no alcohol and no drugs in

view. Officer Matz took Jessica Jobin into the hall and asked Jessica Jobin if she was okay. Officer Matz

performed field sobriety tests upon Palaschak without probable cause and without a Miranda warning

(Grand Jury __). Matz testified that Jobin said "they had been drinking some champagne and everything

was all right" (Oct 31 37:5). At this point the officers had no exigency and should have either

departed or attempted to obtain a search warrant. Officer David Matz's testimony before the grand

jury regarding this point in time was not completely truthful - and inconsistent with his testimony at the

suppression hearing and at trial. Matz changed course twice in midsentence (CT 76:28) before

successfully finding a way to avoid testifying that Officer Dawson threatened an illegal search in order to

coerce Jessica Jobin into surrendering the speculated remaining LSD. Officer Matz (CT_, Grand Jury

Officer Dawson just kind of confronted Miss Jobin and said "Look, we know you been taking LSD

and you - - we want you to - -" I believe in fact I know for a fact that she asked Miss Jobin to, you

From the testimony of Officer Dawson we know that if we completed Officer Matz's sentences where he

interrupted himself the truth was that "and you . . " logically leads to "and you still have some" which was

speculation and not constitute probable cause. The 2nd interruption was "and we want you to . . .".

Obviously, "We want you to . . . give it to us!" - but that sounds too much like a threat. So Officer Matz

testifies that Dawson merely asked "Where is the LSD?" and, transparently, he adds "You know" - a sign

of discomfort with his testimony. Officer Dawson had already testified and was led carefully over the

minefield by the prosecutor in the absence of any defense counsel to cross-examine (CR 43:28-44:2).

Question by prosecutor: "Did you talk with Jessica Jobin?". Next question: "Did she give you anything".

The deceit ultimately backfired on Matz because Officer Dawson, upon cross-examination admitted that

she confronted Jessica Jobin demanding that Jessica Jobin surrender the LSD that Officer Dawson

speculated that she had. Dawson admits threatening that Dawson "would find it anyway" (Oct 31,

56:11). Jobin's adamant recollection on 2 separate events was that Dawson's words were "We're going

to tear this place apart if you do not give us the LSD" (Nov 4 5:23) and (RT 150:15). Jessica Jobin

obeyed the order of Officer Dawson and went to her purse and retrieved a small piece of paper

impregnated with alleged LSD and surrendered it to Officer Dawson. Dawson arrested Jessica Jobin.

Jessica was Mirandized in the car on the way to the Ventura Police station. (RT 140:10). Matz arrested

Palaschak for 647f (Oct 31 47:22). Palaschak was never belligerent to the police (CT 257:19) and was

On approximately June 18, 1991 Jessica Jobin signed a written agreement with the prosecution

to testify against Palaschak in exchange for not charging Jobin with a felony (RT 153).

Melissa Schwentner interviewed with investigator Miller and at trial admitted that she lied to him

repeatedly (RT 222). The prosecution's problem was that one witness (Jessica) admitted giving LSD to

the other witness (Melissa) but Melissa repeatedly denied receiving any LSD (RT _).

On July 3, 1991 Investigator Danny Miller interviewed Jessica Jobin at which time her story was

different than her story in court and different than her story before the grand jury (RT 119:3).

Finally the DA offered immunity to Melissa in exchange for her testimony against

Palaschak (RT 208:13). Then Melissa changed her story and admitted to having received LSD

On August 28, and September 4, and 5, the grand jury heard testimony from Jessica Jobin and Melissa Schwentner. Schwentner admitted at trial that she telephoned Defense Attorney Schwartz and threatened him after Schwartz began investigating the case (RT 221). (End of Statement of Facts.)

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