People v. Lew

• Decision Date: 25 June 1968
• Docket Number: Cr. 11877
• Citation: 68 Cal.2d 774,69 Cal.Rptr. 102
• Court: California Supreme Court
• Parties: , 441 P.2d 942 The PEOPLE, Plaintiff and Respondent, v. Johnny Bocktune LEW, Defendant and Appellant.

Page 102

69 Cal.Rptr. 102

68 Cal.2d 774, 441 P.2d 942

The PEOPLE, Plaintiff and Respondent, v. Johnny Bocktune LEW, Defendant and Appellant.

Cr. 11877.

Supreme Court of California In Bank.

June 25, 1968.

Cooper & Nelsen, Ned R. Nelsen and Richard M. Moore, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kerrigan, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant Johnny Bocktune Lew appeals from a judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. He contends that the trial court erroneously allowed into evidence certain hearsay statements to show the state of mind of the victim, Karen Gervasi, at the time of her death. We have concluded that the statements should not have been admitted, and, since the error was plainly prejudicial, the judgment must be reversed.

The facts are not in dispute. Defendant, though married, had for some time been enamored of Karen; they were sexually intimate, and there was some contemplation of marriage. On the day Karen died defendant had picked her up at her parents' house with the knowledge of and without objection from her parents. The defendant and Karen were in a gay mood. They completed some errands and then drove to defendant's apartment. On the way, according to defendant, Karen noticed some earmuffs which he explained were designed to protect the wearer's ears from the repeated concussion of weapons fired at a pistol range. Although other evidence adduced at trial showed that Karen had an aversion to firearms, defendant testified that the earmuffs naturally led into a conversation about guns, and Karen expressed a desire to fire defendant's pistol. He agreed to take her to a pistol range, and they stopped at his apartment to get the gun. As they entered, a neighbor observed Karen's carefree demeanor and testified that she appeared to proceed voluntarily.

Inside the apartment, according to defendant, they sat on the couch and looked at some pictures through a slide viewer. Defendant then retrieved the gun from another room, and sat down in an overstuffed chair in the living room. Karen sat on his left side, partly in his lap and partly on the arm of the chair. Defendant released the clip from the gun with his right hand while his left arm was partially around Karen's shoulder. He then handed Karen the gun, probably with his right hand, while at the same time he took the viewer from Karen's left hand. The clip fell to the floor, and as he bent over to pick it up he heard a shot. The bullet struck Karen in the left temple just above her eye. Defendant became hysterical when he discovered that Karen was no longer breathing, and placed her on the floor to administer mouth-to-mouth resuscitation. She then began to breathe but remained unconscious.

Defendant further testified that he wanted to call the police and obtain an ambulance, but could not recall the telephone number and instead called his wife at work and requested that she come home, stating that there had been an accident. He then called the operator and gave her the information, asking that she call the police and summon an ambulance. Upon their arrival the police found defendant standing on the stairway in front of his apartment motioning for them to hurry. Karen was lying on her back and bleeding profusely around the head. She was still alive and momentarily regained consciousness, but was unable to relate the events in the apartment. She died a short time later in a hospital.

There was no evidence of a struggle. To determine whether defendant had fired the fatal shot, the police required him to submit to paraffin tests on his hands. These tests were inconclusive: some traces of nitrates were present, but they were not located where one would have expected had defendant in fact fired the gun. There was no trace of nitrates on defendant's right hand, for example, even though he is right-handed. It was conceded that the nitrate deposits on his left hand could have come from other common sources; no nitrates were found on Karen's hands. Finally, the autopsy surgeon testified that it was impossible for him to state that death was not caused accidentally.

Defendant consistently maintained that Karen's death was the result of an accident. His detailed version of the events leading up to the fatal shot in the interview with investigating officers preceding his arrest did not vary in significant respect from his testimony at trial. Under these circumstances certain hearsay statements undoubtedly played a major role in the jury's deliberations.

These hearsay statements, all introduced into evidence over objection, were confidential remarks made by Karen to various friends. Five witnesses (Professor Resch, Dale Moore, Diane Ijames, Patricia Mullen, and Leslie Sautter) testified that Karen told them defendant had threatened to kill her. Professor Resch and Dale Moore declared that Karen also told them defendant had threatened to harm her parents if she confided in them. Leslie Sautter testified that Karen said defendant had threatened to throw the rings he presented to her into the ocean if she would not accept them. Diane Ijames declared that Karen said defendant had told her he had purchased adjoining cemetery plots for her and for him. Professor Resch and Diane Ijames also testified that Karen said defendant had displayed a gun when she, defendant's wife, and defendant met in a parking lot. Dale Moore stated that Karen requested him to witness two parking lot meetings she had with defendant because she feared him. Professor Resch and Leslie Sautter further testified that Karen told them defendant often went into rages, had a terrible temper, and she feared him.

The foregoing testimony falls into two groups: the first four statements are threats allegedly made by defendant to Karen which she then related to friends, and the last three consist of Karen's remarks to friends which no more than purport to reflect her attitude toward defendant. The testimony was introduced to show Karen's state of mind prior to her death.

We start by analyzing the first group of statements, which constitute hearsay on hearsay: in each instance the prosecution witnesses reiterated what Karen reported defendant had told her. Had any witness himself overheard defendant threaten Karen, that witness could have properly testified to the content and manner of the threat. As long as the alleged threat was not too remote in time, such testimony would have been relevant to defendant's intent, a material issue, and admissible under the admissions exception to the hearsay rule. (See Evid.Code, § 1220.) In the instant case, by contrast, not a single witness produced by the prosecution actually heard defendant threaten Karen. 'While threats made by defendant are, of course, material, they must be testified to by the person who heard them, not by someone who was told by someone else that they had been made.' (People v. Merkouris (1959) 52 Cal.2d 672, 696, 344 P.2d 1, 15 (Peters, J., dissenting).) Thus the threats allegedly made by defendant may well be highly relevant in determining his intent at the time of Karen's death (i.e., whether his conduct was intentional or not), but as double hearsay they cannot be admitted under the admissions exception. ¹

The People contend, however, that all the hearsay testimony, including the alleged hearsay threats, was admissible to show Karen's state of mind at the time of her death. In People v. Hamilton (1961) 55 Cal.2d 881, 893, 73 Cal.Rptr. 649, 656, 362 P.2d 473, 480, this court delineated the principal requirements which must be satisfied before the state-of-mind exception to the hearsay rule can be invoked. 'Undoubtedly, in a proper case, and in a proper manner, testimony as to the 'state of mind' of the declarant, where there is an issue in the case is admissible, but only when such testimony refers to threats as to future conduct on the part of the accused, where such declarations are shown to have been made under circumstances indicating that they are reasonably trustworthy, and when they show primarily the then state of mind of the declarant and not the state of mind of the accused.' Defendant insists that the hearsay testimony was not relevant to any issue presented by his defense.

In our cases involving hearsay threats, admissibility has always been approached through a careful examination of the precise issues to which the threats might be relevant. Thus, Karen's state of mind would have been in issue in the absence of direct proof that she had been with defendant at the time of her death, or had defendant claimed self-defense. Had Karen told a friend that she had a date on the night of her death, for example, the friend's testimony would have been admissible to enable the factfinder to infer that she had actually gone out on that night. (People v. Alcalde (1944) 24 Cal.2d 177, 185, 148 P.2d 627.) Or had defendant claimed self-defense, he would have placed Karen's state of mind at issue: since a claim of self-defense requires the trier of fact to find that the other party was the aggressor, the prosecution, through rebuttal testimony could have shown that Karen was apprehensive and not likely to be aggressive. Her fear would then have been a factor properly before the factfinder in its deliberations on the defendant's claim of self-defense. (People v. Atchley (1959) 53 Cal.2d 160, 172, 346 P.2d 764; see People v. Purvis (1961) 56 Cal.2d 93, 98, 13 Cal.Rptr. 801, 362 P.2d 713.) Similarly, Karen's state of mind clearly would have been placed in issue had the police investigation produced any evidence of a struggle preceding her death or had the neighbor, who observed the young couple approach defendant's apartment, testified that Karen entered involuntarily.

Defendant contends, in addition, that Karen's state of mind is not in issue where the...