People v. Gionis

• Decision Date: 04 May 1995
• Docket Number: No. S038982,S038982
• Citation: 40 Cal.Rptr.2d 456,9 Cal.4th 1196,892 P.2d 1199
• Court: California Supreme Court
• Parties: , 892 P.2d 1199, 63 USLW 2708 The PEOPLE, Plaintiff and Respondent, v. Thomas GIONIS, Defendant and Appellant.

Page 456

40 Cal.Rptr.2d 456

9 Cal.4th 1196, 892 P.2d 1199, 63 USLW 2708

The PEOPLE, Plaintiff and Respondent, v. Thomas GIONIS, Defendant and Appellant.

No. S038982.

Supreme Court of California In Bank.

May 4, 1995.

Rehearing Denied July 13, 1995.

[9 Cal.4th 1201] [892 P.2d 1201] William J. Kopeny, Santa Ana, CA, for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Garrett Bearumont, Holly D. Wilkens and Rhonda Cartwright-Ladendorf, Deputy Attys. Gen., San Diego, for respondent.

BAXTER, Justice.

On October 3, 1988, Aissa Marie Wayne and her friend Roger Luby were brutally assaulted by two men. Four men were arrested, including defendant Thomas Gionis, Wayne's former husband. At defendant's trial, the prosecutor argued that Wayne and defendant had been locked in a bitter custody battle over their young daughter, Anastasia, and that defendant was behind the assault. John Lueck, an attorney, was permitted to testify for the prosecution that defendant had told him, among other things, that Wayne had no idea how easy it would be for defendant to hire someone to "really take care of her," and that if defendant were to do something, he would wait until an opportune time to act in order to avoid suspicion. The jury convicted defendant of conspiracy to commit an assault (Pen.Code, former § 182, subd. 1, as amended by Stats.1989, ch. 897, § 15, p. 3062, now Pen.Code, § 182, subd. (a)(1); Pen.Code, § 240), conspiracy to commit a trespass (Pen.Code, former § 182, subd. 1, as amended by Stats.1989, ch. 897, § 15, p. 3062, now Pen.Code, § 182, subd. (a)(1); Pen.Code, § 602.5), assault with a deadly weapon on Luby (Pen.Code, § 245, subd. (a)(1)), and assault with a firearm on Wayne (Pen.Code, § 245, subd. (a)(2)). Defendant was sentenced to an aggregate term of five years in state prison.

The Court of Appeal reversed defendant's convictions. It determined that the trial court prejudicially erred in admitting the evidence of defendant's statements to Lueck in derogation of the attorney-client privilege, even though the statements were made after Lueck had explicitly refused to represent defendant in the legal proceedings involving Wayne. The court also found that defendant was prejudiced by the prosecutor's misconduct and improper disparagement of defense counsel in closing arguments.

We granted review in this case to determine whether defendant's communications with Lueck were protected by the attorney-client privilege, and whether the prosecutor's arguments constituted prejudicial misconduct. On the privilege issue, we hold that the Court of Appeal erred in disturbing the trial court's determination that the privilege did not apply. In addition, we conclude that defendant's statements were not inadmissible under Evidence Code section 352. Finally, we find that the Court of Appeal erred in determining that the prosecutor committed prejudicial misconduct. We therefore reverse the judgment of the Court of Appeal, and remand the matter to that court for further proceedings not inconsistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant, a doctor, and Aissa Marie Wayne, daughter of the late movie actor John Wayne, were married in 1986. In February 1987, defendant and Wayne had a daughter named Anastasia.

Soon after the baby was born, the marriage began to deteriorate. Defendant twice threatened to kill Wayne if she got in the way of his relationship with Anastasia. He also warned Wayne that if she left him he would flee to Greece with Anastasia and Wayne would never see her daughter again. Despite these threats, Wayne left defendant in June 1987, taking Anastasia with her.

A bitter custody dispute ensued. A few months after Wayne left defendant, she discovered that she was under surveillance by Dan Gal, a private investigator hired by defendant. Although Wayne knew she was being watched, she pursued her normal lifestyle.

Christine Foss was an employee of defendant at his clinics in Upland, Corona del Mar and Palm Springs. In July 1987, defendant told Foss of his anger over Wayne's departure and said he could hire people to physically harm Wayne if she ever "messed with him." Subsequently, defendant told Foss and a coworker to resign from his clinics after they went to watch Wayne play tennis in Corona del Mar. Foss did not report her conversation with defendant to the police until three months after the assaults on Wayne and Luby in October 1988.

John Lueck was an attorney who referred clients to defendant for medical evaluations. In May or June 1987, Lueck received a telephone call from defendant asking him to come to defendant's home. Defendant was in tears. He said he had just been served with divorce papers, and he needed somebody to talk to because he was upset. Although Lueck initially declined to go to defendant's home, he ultimately agreed to meet defendant after making it clear that he would not be willing to have any involvement as a lawyer in defendant's dissolution case. Lueck refused to represent defendant because he knew both defendant and Wayne.

When Lueck arrived at defendant's home, defendant said he was upset about the circumstances of the separation and about the fact that Wayne had taken the baby. Defendant displayed very wide mood swings, alternating between tears and anger. At one point during the visit, defendant showed Lueck a declaration by Wayne in support of an order to show cause, and indicated he would like to change venue from Orange County to Los Angeles County because Wayne was the daughter of one of Orange County's most famous residents; the county airport was his namesake. Lueck, speaking as defendant's friend, said he thought a change of venue might be appropriate, but did not offer to do it. Lueck also told defendant to quickly retain a good attorney.

While in one of his very angry moods, defendant showed Lueck some holes in a wall, as well as a closet door off its track in the bedroom. Defendant said that the altercation which resulted in the holes in the wall was nothing relative to what he was capable of doing. He also told Lueck that Wayne "had no idea how easy it would be for him to pay somebody to really take care of her."

After hearing defendant make these statements, Lueck commented that if something were to happen to Wayne during the dissolution or a child custody dispute, defendant would certainly be the primary suspect. Defendant replied he "was too smart to do something like that at a time when it would be obvious that it was his responsibility." Defendant then said that if he were to do something, he "would wait until an opportune time and circumstances [sic ] so that suspicion wouldn't be directed towards him." Defendant also told Lueck he had friends, family and money in Greece available to him in the event he needed to leave the country. Lueck did not immediately contact the police about defendant's statements because at the time he believed they were simply expressions of anger.

On a Friday in October 1987, defendant showed up at Lueck's office, apparently upset with some papers that had been prepared by his counsel in his dissolution case. Defendant appeared desperate. He told Lueck that Wayne was trying to prevent him from having Anastasia at her baptism, that his attorney was unavailable, and that something had to be done immediately because people were leaving Greece that Friday afternoon for the baptism. Defendant pleaded with Lueck to go to court on an ex parte basis. Lueck agreed, but when he went to court, an irate judge told him that arrangements had already been made. The judge then accused Lueck of being part of an effort to harass Wayne. Lueck was paid $750 for the court appearance.

During January and February 1988, Wayne began a romantic relationship with Roger Luby. Wayne had been upset over the breakup of her marriage and the custody dispute, and she leaned heavily on Luby for emotional support. At some point, defendant made sarcastic remarks to Wayne concerning Luby and commented on the considerable amount of time that they spent playing tennis.

In the summer of 1988, Robert Cornely visited Gal, the private investigator hired by defendant. At Gal's house were Jerrel (or Jerry) Hintergardt and another man. Cornely had agreed to help Gal by going with Hintergardt and the other man to serve papers regarding a custody dispute at a house in the beach area. Cornely was unaware anything unlawful was planned, but he was uncomfortable and felt the situation was "not right." Cornely and the others left after the person for whom they were waiting did not come home.

On the morning of October 3, 1988, Wayne and Luby attended an aerobics class in Corona del Mar. At approximately 11:30 a.m., they returned to Luby's residence in Newport Beach. Hintergardt and a man named Jeffrey Bouey were waiting. They approached Luby and Wayne as Luby and Wayne exited their car in the garage, and asked Luby if his name was Roger Luby. Luby said yes.

Suddenly, the men drew guns. When Luby asked if they were joking, Hintergardt said, "This isn't no fucking joke," and struck Luby on the head with his gun. Hintergardt threatened to kill Luby if he yelled or screamed. He forced Luby to the ground, holding the gun to his head. After handcuffing Luby's hands and ankles, Hintergardt repeatedly smashed Luby's face into the concrete floor, warning him not to move or scream. Hintergardt then severed Luby's right Achilles tendon with a knife, and attempted to do the same to the left tendon.

Meanwhile, Bouey held a gun to Wayne's head and forced her to the ground. When Hintergardt finished with Luby, he handcuffed Wayne's hands and feet. Hintergardt yelled at Wayne, then grabbed her hair and slammed her face into the concrete floor twice. Wayne felt her head split open and blood stream down her face. Hintergardt told her, "You're fucking with the wrong people."

After Hintergardt...