Limits Sought on Testimony by Dally’s Family

As lawyers for convicted killer Michael Dally prepare to fight for his life, prosecutors are seeking to curb emotional testimony by his family members when the penalty phase of his murder trial begins next week.

But the prosecution wants friends and relatives of slain day-care provider Sherri Dally to tell the jury about the anguish and despair they have suffered as a result of her kidnap-slaying nearly two years ago.

“The prosecution cannot present an X-ray of a broken heart, nor a picture of shattered hopes and dreams,” Deputy Dist. Atty. Michael Frawley wrote in one of three motions filed this week.

“Just as the murderer should be considered as an individual,” he said, “so too the victim was an individual whose death represents a unique loss to her family and friends.”

Sherri Dally, a 35-year-old mother of two boys, was kidnapped and fatally stabbed on May 6, 1996. Her body was dumped in a steep ravine and found by a search party a month later.

On Monday, a jury found Michael Dally guilty of murder, conspiracy and kidnapping for planning his wife’s murder with his girlfriend, Diana Haun. She was convicted of the same charges last fall and sentenced to life in prison.

Though he did not wield the knife that killed his spouse, Dally, a 37-year-old former grocery store worker, still faces a possible death sentence for his involvement in the crime.

On Tuesday, the defendant’s father said that his son was stunned by the verdicts, but more worried about his family than his fate.

“Mike is doing real good,” said Lawrence Dally, who spoke with his son by phone Tuesday morning. “You would think he was more concerned about himself, but he wasn’t. . . . We all didn’t expect what happened.”

In preparation for the penalty phase, which is expected to last less than two days, prosecutors filed court papers on Monday outlining the witnesses they intend to call and the testimony they plan to elicit.

They want Sherri Dally’s parents, Ken and Karlyne Guess, as well as her brother, Scott, to testify about what a devoted mother she was and what a good wife she tried to be.

The family members and Sherri Dally’s two best friends, Kristin Best and Debbie English, would also tell the jury about the devastating effect her death has had on their lives.

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Prosecutors also want the jury to see a 10-minute video filled with snippets of home movies from Sherri’s life. The video was also proposed at Haun’s penalty trial, but denied by the judge in that case.

Arguing in favor of such testimony, prosecutors say the jury should know the full extent of the harm caused by Sherri Dally’s slaying, including its impact on family members and the community.

“Justice can only be achieved by the sentencing jury being fully informed as to the totality of the harm caused by the defendant,” Frawley wrote.

The prosecutor also filed a separate motion dealing with the potential testimony of Dally’s relatives.

Specifically, prosecutors do not want the defendant’s parents, siblings or sons, ages 10 and 8, to make statements about whether he should or should not receive a death sentence.

The issue became explosive in the recent penalty trial of convicted killer Michael Raymond Johnson, who was sentenced to death in March for gunning down Ventura County Sheriff’s Deputy Peter Aguirre Jr.

After several days of tearful testimony from Aguirre’s family, the defendant’s mother took the stand.

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Deputy Public Defender Brian Boles asked Wilma Johnson if she loved her son, and then posed this question: “Would you or do you want to see him receive the death penalty?”

Drowned out by the bellowing objection of Deputy Dist. Atty. Matthew Hardy, the mother responded: “Of course not.”

After quickly ushering the jury from the courtroom, Superior Court Judge Steven Z. Perren told the jury in a strongly worded admonition to disregard the question and the response.

“The law is clear,” he said, “the expressed feelings of the family of the defendant are not to be considered.”

Arguing that the judge had erred, defense attorneys filed a motion for a mistrial three days later.

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“It is simply beyond dispute that it is permissible for a defendant in a capital trial to elicit testimony from people who know him that they do not wish to see him sentenced to death,” Deputy Public Defender Susan Olson wrote in response to Perren’s ruling.

Olson, who represented Haun in her trial, prepared the motion for the Johnson defense team. It was denied, but the issue is still in dispute.

The matter, which is now the subject of a motion for a new trial, is expected to be debated again today at Johnson’s sentencing hearing.

Frawley said that the dispute in the Johnson case had nothing to do with his filing the motion in preparation for the Dally penalty phase. Prosecutors made the same motion before Haun’s penalty phase, he said.

But Hardy said that the issue illustrates the struggle lawyers and judges face in interpreting court rulings about what can and cannot be allowed in capital murder trials.

“This is a law that is evolving,” Hardy said, noting that it was only seven years ago that the U.S. Supreme Court ruled that juries could consider evidence of a victim’s character as well as the emotional impact on family.

In handing down his ruling last month, Perren cited a 1995 state Supreme Court case, People vs. Sanders. In that case, the trial judge would not allow the defendant’s sister to answer a question dealing with her brother’s punishment. The ruling was appealed and upheld in a unanimous decision.

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The case was cited by Frawley in his motions this week, and he repeated a phrase used by Perren in the judge’s ruling on Johnson.

“I truly believe this is not a proper forum in which to run a plebiscite amongst family and friends to determine whether the defendant should live or die,” the judge said. “That is the function of those people who have given their time and attention to this case.”

Dally’s lawyers would not comment on the prosecution’s motions, citing a gag order. But they are expected to file written responses by Friday.

For his part, Lawrence Dally said he hopes that his son’s lawyers call him to the stand next week. He believes Michael Dally is innocent, and he says the prosecution twisted the facts to implicate his son.

“There was no solid evidence on anything,” he said. “It was all speculation. But there was so much speculation, they thought it was true.”

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Lawrence Dally said he believes the jury convicted his son based solely on testimony portraying his son as a bad person who mistreated his spouse.

“We don’t convict people because they are not a nice person, we convict them if they have done something wrong,” he said. “We all have skeletons in our closet . . . we cannot convict on sentiment.”

Times correspondent Nick Green contributed to this story.