People v. Otto

• Court: California Supreme Court
• Writing for the Court: ARABIAN; LUCAS
• Citation: People v. Otto, 9 Cal.Rptr.2d 596, 2 Cal.4th 1088, 831 P.2d 1178 (Cal. 1992)
• Decision Date: 09 July 1992
• Docket Number: No. S019773,S019773
• Parties: , 831 P.2d 1178, 61 USLW 2093 The PEOPLE, Plaintiff and Respondent, v. Brenda Sue OTTO et al., Defendants and Appellants.

Page 596

9 Cal.Rptr.2d 596

2 Cal.4th 1088, 831 P.2d 1178, 61 USLW 2093

The PEOPLE, Plaintiff and Respondent, v. Brenda Sue OTTO et al., Defendants and Appellants.

No. S019773.

Supreme Court of California In Bank.

July 9, 1992.

Rehearing Denied Aug. 20, 1992.

[2 Cal.4th 1091] [831 P.2d 1179] Mark L. Christiansen, Sacramento, for appellant mark.

Laurance S. Smith, Sacramento, for appellant Otto.

Morris Beatus, Office of Atty. Gen., San Francisco, for respondent.

ARABIAN, Justice.

Joe Otto's distrust of his younger wife, Brenda Sue, bordered on the obsessive; his anxieties derived mainly from her uncertain relationship with another man, Marvin Elmer Mark. To confirm his suspicions, Joe secretly tape-recorded Brenda's telephone calls from the family residence. These recordings captured a conversation between Brenda and her suspected paramour which added a new and horrifying dimension to Joe's fears; the illicit alliance was a reality, but its object was not merely his wealth and marriage, it was his life itself.

Joe's concerns proved to be well founded. Within 48 hours of the recorded conversation, he was found dead--bludgeoned to death in his own home. Shortly thereafter, the police discovered the secret recording and several other taped conversations. Brenda and Marvin Mark were charged and tried for first degree murder. A jury returned guilty verdicts against both defendants; each received a prison sentence of 25 years to life.

Prior to trial, both defendants moved to suppress the taped conversations on the grounds that Joe Otto had obtained them in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968 (18 U.S.C. §§ 2510-2520) (hereafter Title III or the Act) and that their introduction into evidence would therefore violate the exclusionary provision of the Act (18 U.S.C. § 2515). The trial court denied the pretrial motion and subsequently denied a renewed motion to suppress the tapes at the start of trial. The Court of Appeal affirmed the trial court's rulings, holding that suppression was not compelled under federal or state law. ¹

We granted review limited to the issue of the admissibility of the telephone conversations secretly recorded by the victim. ² For the reasons set forth below, we conclude that under Title III the contents of the tapes could not properly be introduced into evidence. Because of the critical role played by the tapes at trial, we further conclude that the error requires reversal of the judgments of conviction.

FACTS

Joe Otto was a 61-year-old electrician with a history of heart disease when, in September of 1986, he married Brenda Sue Delwiche, a 39-year-old divorced woman with two grown children. Brenda was Joe's third wife.

The couple's relationship was troubled from the start. Their courtship of the previous year and brief marriage were marked by jealousy and suspiciousness on Joe's part, and cold-blooded calculation on the part of Brenda. She confided to a friend that she agreed to the marriage only because Joe was sick and probably would not live long; the marriage would provide financial security for herself and her daughters. Indeed, before she would agree to marry Joe, Brenda had apparently demanded a substantial cash payment, which she planned to invest with Marvin Mark.

Mark's involvement with Brenda dated from August 1985, when he became a boarder in her home. He soon became her lover and they were engaged in late 1985. The marriage plans were dropped, however, because of financial problems. Mark was an enrolled agent licensed to do income tax work. He shared an office with another enrolled agent in Santa Clara and did overload work in lieu of rent. Throughout the period in question, he complained of money problems.

In early September 1986, Joe gave Brenda a check for $10,000. The check was immediately funneled to Mark, who thereupon spent the money on a new office in Campbell and paid off certain debts. Shortly thereafter, Joe and Brenda were married in Hawaii. Within days of their return, Brenda began to speak of obtaining a divorce. She complained of Joe's possessiveness and jealousy. By the middle of October, she told her daughter that one way or another--by death or divorce--the marriage would end and she might then marry Mark.

About a week after they returned from Hawaii, Brenda learned that Joe was using a telephone answering machine to record her conversations. Indeed, even before they were married, Joe had frequently recorded his telephone conversations with Brenda so that, as he explained to his daughter Jolynn, he could later review and analyze them for contradictions. A friend showed Brenda how to unplug the answering machine from the telephone line. Unbeknownst to Brenda, however, the secret taping continued from a voice-activated recorder which Joe had hidden under Jolynn's bed. The machine recorded every call that came in or out of the house.

On the afternoon of Monday, October 13, 1986, Joe approached his neighbor, Scott Kennedy, a San Jose police officer, and asked him to listen to a particular tape. The tape contained the whispering voices of a man and a woman whom Joe identified as Brenda and Mark. The so-called "whispering tape," which was played for the jury at trial, begins with Brenda asking, "Why?" and a male voice responding, "Everything was wrong." The male then refers to a "party across the street," to "stuff all over the street with the sheets on" which "must have somebody watching," and to an "accident" on the corner. Brenda then explains, "It's the garage sale." The male states, "I tried every possible way," and asks where Brenda is calling from. When she says "home" the male expresses concern but Brenda reassures him, "I learned how to unplug it." Later in the conversation the male states, "I got a better plan." Throughout the call, the male refers to Brenda as "honey" and closes with, "Love you baby." ³

The various references in the tape place the time of the telephone call at late Saturday night, October 11, when a neighborhood party was occurring; items from a garage sale that Joe and Brenda held that day were still outside covered with sheets; and an accident which occurred at 11:10 p.m. that evening was not cleared until midnight.

After he talked to Kennedy on Monday, Joe also played the tape for his daughter Jolynn, who lived with Joe and Brenda and worked the night shift as a psychiatric technician at a state hospital. They tried to understand what the conversation meant. Joe told her that it was made Saturday night after he had gone to bed. Jolynn informed her father that she found the door unlocked on Sunday morning when she returned from work; Joe recalled that he had locked the door before going to bed. Concerned about the call, Jolynn asked her father to keep his gun nearby. Joe took her advice, retrieved his gun from a hiding place in the kitchen and placed it in his jacket pocket.

More telephone conversations were recorded the next day, Tuesday, October 14, although it is unclear whether Joe ever heard them. One involved a call from Brenda to Mark. In it Mark asked whether Jolynn was going to work that night; Brenda assured him that she was. Mark then states that he had "picked up a set of wheels to try out and see what it looks like. Trade cars, whatever." Mark indicated that he would be at the office until 7 p.m. and would be at home until "about 9:30 or so. Any changes, let me know." The conversation ended with each expressing love for the other. ⁴

Late that afternoon, Joe and Jolynn left the house for an appointment. Before leaving, Joe handed his daughter an envelope containing his will and asked her to put it in a safe place. The will left Jolynn all of Joe's property and gave Brenda one dollar. ⁵ On their way home, Jolynn told her father that Brenda had been asking about her work schedule. To prevent anything from happening to Joe, they concocted a plan to have Jolynn tell Brenda that she planned to return home early from work that night. Joe also promised that he would confront Brenda the next day, Wednesday. Although when they left the house the doors were locked and the dog was in the yard, when they returned, at 6:45 p.m., they found the doors wide open and the dog running loose in the house.

Alarmed, Joe checked the house with his gun but found nothing. Later, Jolynn mentioned to Brenda that she intended to leave work early that evening. Brenda appeared visibly upset by the news. Jolynn left the house at 7:30 p.m. She did not return home early. When she finally did, her father was dead.

Joe's death was discovered early the next morning, Wednesday, when Brenda appeared at the doorstep of the Ottos' neighbor, Scott Kennedy. When Kennedy let her in, she was naked and screaming that "you have to help Joe. I think they have killed him or he's hurt. Somebody has broken in." Brenda's hands were tied behind her back with a terrycloth belt. Kennedy's wife, Kim, untied her bindings and wrapped Brenda in a blanket; she did not observe any blood or marks on Brenda's hands or arms, other than what appeared to be a rug burn on her right forearm. Both Kennedys detected the odor of semen.

Brenda explained that she and Joe had fallen asleep while watching television. She awoke with the feeling of "stuff" on her face and the presence of two people hurting Joe. In recounting this tale, Brenda seemed upset but was not crying. The first police officer on the scene obtained a report from Brenda that two Latino men had broken into the home and possibly killed Joe. In a second statement, also at the Kennedy house, Brenda stated that a large Latino man had come out of nowhere and stood next to Joe. She then heard a loud noise and simultaneously felt something sprayed on her face. She tried to run but the intruder struck her on the side of her face. A second man grabbed her housecoat, ripped off her bra, and knocked her into a wrought iron fixture, following which she passed out. S...