JUDGE ADMITS VIDEOTAPE OF DALLY'S WIFE INTO TRIAL.

Byline: Don Holland Daily News Staff Writer

For the second day in a row, attorneys hoping to keep convicted killer Michael Dally off of Death Row failed Thursday to exclude potentially damaging evidence from consideration by the jury in the penalty phase.

The series of setbacks sparked complaints from the defense that the prosecution's ``emotionally charged'' evidence will prevent the jury from reaching a dispassionate decision on whether to recommend a death sentence for Dally.

``This whole conversation saddens me,'' said defense attorney James Farley. ``It saddens me that fairness and equity have gone out the window.''

In admitting the bulk of the prosecution's evidence into the penalty phase, the court has stacked the deck against Dally and is making the jury ``an instrument of vengeance of the state,'' said an agitated and angry Farley.

Attorneys for both sides argued Thursday over motions that will shape Dally's penalty trial, which is set to begin Monday.

Dally, a 37-year-old former supermarket worker from Ventura, was found guilty April 6 of first-degree murder, kidnapping and conspiracy for planning the murder of his wife, Sherri. His lover Diana Haun already has received a life sentence for killing his spouse.

Superior Court Judge Charles Campbell said he will allow prosecutors to show the jury a 10-minute videotape of Sherri Dally snuggling with her children and playing with family members. Prosecutors say the tape shows Sherri Dally was a loving mother and daughter and not simply an abstract victim of a murder.

``The evidence you have is evidence which would inflame the passions of the jury,'' said defense attorney James Farley. ``This evidence does not show (the circumstances of the crime). It shows that Sherri Dally was a good mother. Everybody knows that.''

When prosecutors had trouble identifying some of those portrayed in the videotape during Thursday's hearing, a helpful Dally spoke up but was quickly silenced by his own attorneys.

Defense attorney Robert Schwartz noted that the same tape was excluded from Diana Haun's trial, saying it would be improper to include it in Dally's penalty phase.

Dally ``knew that he extinguished a lot of joy from this world,'' said Deputy District Attorney Michael Frawley. ``But (jurors) don't know that unless we show them this.''

Campbell agreed with prosecutors, saying the tape is particularly relevant in Dally's case because he knew how the murder would affect those who knew and loved Sherri Dally. The jury is allowed to consider just such ``victim impact evidence'' in recommending life in prison without parole or a death sentence for Dally.

The defense also lost a bid to tell the jury that Dally's co-conspirator, Diana Haun, was sentenced to life in prison - not death - for her role in the May 1996 murder. And although the prosecution made a veiled reference to Haun's punishment during Dally's trial, the judge said the law is clear that other cases cannot be cited to influence a jury's decision.

The judge also allowed prosecutors to call three friends of Sherri Dally to testify. The defense's witness list includes Dally's 10-year-old son, Devon, although attorneys have not yet decided whether to ask him to testify.

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PHOTO (Color) Michael Dally

Begins penalty phase Monday