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PEOPLE v. LEW (1967)

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Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Bocktune LEW, Defendant and Appellant.

Cr. 13183.

Decided: November 15, 1967

Cooper & Nelsen, Ned R. Nelsen and Richard M. Moore, Los Angeles, for appellant. Thomas C. Lynch, Atty. Gen., William E James, Asst. Atty. Gen., and Thomas Kerrigan, Deputy Atty. Gen., for respondent.

Johnny Bocktune Lew appeals his conviction for second degree murder, and the sentence rendered pursuant thereto following a jury trial and verdict. His motion for a new trial and request for probation were denied by the trial court and Johnny Lew was sentenced to state prison for the term prescribed by law.

Appellant contends that the trial court committed prejudicial error in admitting, under the state of mind exception, certain hearsay evidence in the form of statements by the deceased declarant, Karen Gervasi, including appellant's alleged threats to kill her. Without this testimony, appellant further contends, the evidence would be insufficient, as a matter of law, to support his conviction.

Johnny Lew, an American citizen who was reared in Hong Kong, came to the United States in 1959. In 1961 he married his first cousin, Marguerite, in South Carolina. The couple first resided in San Francisco, California, but in 1963 they moved to Los Angeles where appellant, who had served for several years on the police force in Hong Kong, enrolled in college to study police science. In 1964, while a student at El Camino Junior College, he met Karen Gervasi, a blonde Caucasian girl. Both subsequently transferred to California State College in Long Beach and in September, 1965, they had their first date. They saw one another frequently thereafter, dating casually or formally several times each week, and ultimately they became sexually intimate.

Appellant testified that in mid-November of 1965 he told Karen that he felt he should stop seeing her. About a week later Karen told him that she thought she was pregnant with his child and Johnny then said that if the child was his, he would be responsible for it, intimating that the would marry her. Accordingly, on or about November 30, Johnny purchased an engagement ring and wedding band which he picked up about a week later and gave to Karen to wear. Sometime later Karen told appellant she was not pregnant and, at his request, agreed to return the rings, but the rings were still in her possession at the time of her death.

Over the Thanksgiving weekend Karen visited appellant's apartment where they had intercourse, and she thereafter used the shower. Later that afternoon, appellant left for San Francisco to visit his ailing father. His wife, Marguerite, discovered blonde hair in her shower cap during appellant's absence, and upon his return she confronted him. Johnny then admitted the affair and his emotional involvement with Karen, and discussed with his wife the possibility of divorce. Later on, probably Friday, December 3, Johnny told his wife about Karen's presumed pregnancy and she agreed that if there was a reasonable likelihood that the child was his, she would give him a divorce so that he might marry Karen. However, she expressed the desire to meet Karen first in order to discuss the matter. She telephoned Karen who agreed to meet Marguerite but was reluctant to have the meeting take place at her home. Finally it was agreed that all three should meet on Sunday, December 5, in the parking lot of a bowling alley not far from Karen's home.

After the appointment had been arranged, Karen requested another boy friend, Dale Moore, to be present and to observe the meeting from a distance. There is a conflict in the testimony concerning the events which took place at the meeting. Dale and Karen arrived at the parking lot in different cars; Johnny drove Marguerite to the location in their white Cadillac. Dale's car was so situated that he had a clear view of the Cadillac and its occupants, above shoulder level. He testified that he observed nothing unusual either then or upon an occasion several days later when he once more observed, at Karen's request, her meeting with Johnny in the parking lot at the Broadway Department Store where she worked.

It is agreed that when the parties met at the bowling alley Karen got into the Lews' Cadillac on the passenger's side while Johnny sat in the driver's seat with Marguerite between them. Later, Johnny went over to Karen's side, opened the door, helped her out, and led her around to the driver's side of the car where he prompted her to take the center position, between himself and his wife. Sometime thereafter he and Karen left his wife in the Cadillac and went over to Karen's car where they sat and talked for about 45 minutes. Dale stayed until Johnny finally returned to his car; then the persons in each of the three cars drove away. Johnny and Marguerite testified that the situation was at an impasse for the three occupants of the white Cadillac, who merely sat in silence. Johnny changed Karen's seating position with the hope that this would help to ease the tension, but it did not. Finally, Marguerite reached under the passenger's seat and withdrew a gun which she pointed at herself. Johnny took the loaded weapon away from her, unloaded it and threw it on the back seat. Shortly thereafter he returned with Karen to her car where they talked for some time and he then left to take his wife home. It was following this incident that Karen told him she was not pregnant, a fact subsequently confirmed by autopsy.

December 13 was the day before Karen's death. She had lunch at the school cafeteria with a girl friend, Patricia Anne Mullen, who testified that Johnny joined them for a few minutes, joking affably and in apparent good humor. That evening Johnny visited the department store where Karen worked, taking with him his cousin, Eddie Hoy, to discuss a double date planned for December 17. Karen greeted them cheerfully but said that the girl she had in mind for Eddie failed to report to work that day and that Karen was unable to get in touch with her.

On the morning of December 14 Karen stayed home from school to wash her hair and Johnny met her there after he finished an examination. He visited casually with Karen's mother, who noticed nothing unusual in his or Karen's behavior. Karen told her mother they were going shopping at the Del Amo shopping center and drove off voluntarily in Johnny's car. They drove directly rectly to appellant's bank where he cashed a $65 check leaving a balance of slightly over $2 in his checking account. Next, he visited his safety deposit box and removed his wife's jewelry and ownership documents pertaining to the car, boat and trailer which he and his wife owned, ostensibly because his wife wanted these items in her possession pending their divorce. Johnny and Karen then had lunch together in a Chinese restaurant before going to his apartment.

There was evidence that Karen feared firearms and attempted to avoid being around them. Her father testified that she requested him to take his two automatic pistols outside when he cleaned them and would never remain in the same room with him on these occasions. Dale Moore, who was in love with Karen and wished to marry her before she dated Johnny, once attempted to show her a rifle and Karen asked that he put it away because she did not want to have anything to do with it. Appellant testified, nonetheless, that when they left the restaurant Karen noticed in the car some special earmuffs which he explained were designed to protect the wearer's ears from the repeated concussion of weapons being fired at a pistol range. This led to a conversation about guns during which Karen expressed a desire to fire one of appellant's pistols. He agreed to take her to the Centinela Pistol Range for this purpose and they stopped at his apartment to get the gun. A neighbor, who was outside walking a pair of poodles when they arrived, observed Karen's good humor and believed that she visited Johnny's apartment voluntarily.

Appellant further testified that once in-side the apartment he and Karen first sat on the couch and looked at some pictures through a slide viewer. He then went into the den to get a .32 caliber Savage automatic pistol which he previously had been given by a friend to keep for him. He returned to the living room and sat down in an over-stuffed chair. Karen sat on appellant's left side, half in his lap and half on the arm of the chair. Johnny released the clip from the gun with his right hand while his left armwas 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. This startled him, he jumped up and immediately observed that Karen was bleeding profusely from a gunshot wound in the left temple just above her eye. He became hysterical when he discovered that she had stopped breathing and placed her on the floor to administer mouth-to-mouth resuscitation. Karen then began to breathe, but remained unconscious and unable to talk.

Appellant hastened to the telephone to notify the police and to obtain an ambulance, but couldn's think of the telephone number and instead called his wife at work, told her that there had been an accident, and requested that she come home. Then he called the operator and gave her the information, requesting that she call the police and an ambulance. When the police arrived at approximately 1:40 p. m., they found Johnny standing on the stairway in front of his apartment motioning for them to hurry. Upon entering the apartment they saw Karen lying on her back, bleeding profusely from the gunshot wound in her head. She was still alive, regained consciousness only briefly, and remained unable to speak. The ambulance took her to the hospital, where she died during surgery. The autopsy surgeon testified that it was impossible for him to state that death was not caused accidentally.

Johnny, who at all times denied that he killed Karen, was interviewed by Officer Diemer in the apartment before his arrest. Although no substantial conflict appears between his narration of the fatal incident to the officer and his testimony in court, there were discrepancies concerning the surrounding circumstances. He did not then disclose Karen's formerly alleged pregnancy, but instead related that although in November Karen agreed to marry him, she later said this would be impossible and rejected his proposal despite her avowed affection for him. He described his relationship with his wife as a ‘common-law’ marriage, but later explained that he did so only because he understood that marriage between first cousins was prohibited in California.

Police found the .32 caliber Savage automatic and a clip containing nine rounds of ammunition lying near Karen on the floor. The expended shell lay on the floor about ten feet from the position in which Karen probably was sitting when she received the wound and the plastic slide viewer lay under a corner of the couch nearby. There were eight rounds of .32 caliber bullets on top of the appellant's dresser drawer. On a table in the living room officers found an envelope marked ‘Marguerite K. Lew’ containing the ownership documents for the car, boat, and trailer as well as a withdrawal slip on the couple's San Francisco savings account, all endorsed in blank by appellant. The apartment presented no evidence that a struggle might have taken place.

Upon police instructions, care was taken that none of the hospital attendants touched Karen's hands in order that reliable paraffin tests might be made. The officers also requested that appellant, who had been kept under surveillance since the officers' arrival, submit to paraffin tests of his hands. Just before the impressions of appellant's hands were made, Lieutenant Goodyear entered the room, informed Johnny that Karen was dead, and placed him under arrest for murder. Appellant then withdrew his hands from the counter and refused to take the test, but Officer Diemer advised him that he was required to comply and firmly lifted his wrists to replace his hands on the counter. Although Johnny once again attempted to avoid the test, he finally submitted to it voluntarily.

Barrett Fitzgerald, a qualified expert in ballistics and firearms identification, received and analyzed chemically the paraffin casts. He found no nitrated deposits on Karen's hands but noted deposits on the index finger, web and thumb of Johnny's left hand. There were no deposits on appellant's right hand, and he is right-handed. It is common knowledge among chemical analysts that when a weapon is fired, unburned and partially burned powder particles containing nitrates are emitted from the barrel. A paraffin test will reveal the presence of nitrate on a subject's hand, but is unreliable to the extent that it cannot determine the source, and contact with common materials such as fertilizers, ashes, matchheads, or meat tenderizers, to name a few, may leave similar deposits.

Mr. Fitzgerald further testified that the weapon was within 10 inches of Karen's head when the shot was fired as evidenced by the tattoo of powder burns about her left eye and temple. He also described the action of the .32 caliber Savage automatic weapon. This gun is loaded by inserting a magazine or clip into the grip. When the slide on the top of the weapon is then pulled to the rear, the bolt pushes the uppermost round into the chamber and cocks the firing pin. A nine-pound grip or pressure is required to pull the trigger which causes the firing pin to strike the primer of the round, setting it off. Without the clip, a single shell can be loaded directly into the open chamber only when the slide is pushed back. The weapon had a safety device plainly marked ‘safe’ and ‘fire’; when this lever was placed on ‘safe’ the weapon could not be fired. Substantial pressure was required to fire this automatic pistol in contrast to that required for smaller weapons which might have a ‘hair trigger’ requiring only three or four ounces up to perhaps a pound and a half of pressure.

Evidence was adduced by the defense that Johnny had a reputation for an even disposition and a peaceful good nature. His wife, his cousin, Eddie Hoy, and his friend, Deputy David R. L'Heureuse, of the Los Angeles County Sheriff's Office, all testified that appellant had a peaceful disposition. Instead of shouting or exhibiting bad temper, he was inclined to become quiet and to sulk when angry. The manager of the apartment house in which the Lews resided testified that she would have been able to hear had anyone raised his voice in that apartment, which was immediately below hers, but, in fact, never while the couple resided there did she hear Johnny raise his voice, nor had she ever seen him in a rage.

There is no doubt that Johnny was passionately infatuated with Karen. Karen's mother found in her bedroom the two rings that Karen had received from Johnny and had concealed, as well as a package of letters which Johnny had written to Karen. The letters which combine adolescent romanticism with imperfect English and are interspersed with quotations from Rousseau, reflect the anxiety, intensity and instability which characterized appellant's relationship with Karen. For example, ‘I am a man of very strong passions, and while I am stirred by them nothing can equal my impetuosity. * * * I forget all discretion, all feelings of respect, fear, and decency.’ Or ‘After all, I think I am a most childish person that you have ever seen. Sometimes confusion might be the power to drive a person nuts. Forgive every I had done or I had said to you, but I am sure you know how I feel about you and always will.’

The prosecution also adduced testimony concerning Karen's statements to friends and to one of her instructors that appellant allegedly had threatened her life and her parents' lives as well, if she confided in them, and had conveyed other veiled implications of harm. Appellant contends that all of such testimony, received under the state of mind exception to the hearsay rule, was improperly admitted. This evidence included the following testimony: (1) Five people (Professor Resch, Dale Moore, Diane Ijames, Patricia Anne Mullen and Leslie Ann Sautter) testified that Karen told them that Johnny had threatened to kill her; (2) Professor Resch and Dale Moore testified that Karen told them also that he had threatened to harm her parents if she confided her fear of his threats in them; (3) Professor Resch stated that she told him she was afraid of harm if she agreed to see appellant or if she refused; (4) Dale Moore declared that Karen requested him to witness two parking lot meetings she had with Johnny because she feared his threats; (5) Professor Resch and Patricia Anne Mullen testified that Karen said that Johnny had displayed a gun when she, Marguerite and he met in the parking lot; (6) Leslie Ann Sautter testified further that Karen said Johnny had threatened to throw the rings he gave her in the ocean if she would not accept them; (7) Diane Ijames testified further that Karen said that Johnny had told her he had purchased adjoining cemetery plots for her and for himself; (8) Patricia Anne Mullen said Karen told her she had learned of a Chinese custom requiring a jilted suitor to kill the woman who first accepted then rejected his affections.

‘* * * [T]estimony 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.' (People v. Hamilton, 55 Cal.2d 881, 893, 13 Cal.Rptr. 649, 656, 362 P.2d 473, 480.) Clearly, such testimony is “admissible only if there appears to be a necessity for that type of evidence and a circumstantial probability of its trustworthiness” (People v. Hamilton, supra, p. 895, 13 Cal.Rptr. p. 657, 362 P.2d p. 481), but it is the death of the declarant which initially establishes the necessity for resort to hearsay justifying its introduction where there is an issue in the case. Although such evidence at all times should be received with caution and must be accompanied by an appropriate limiting instruction to the jury, it may help the trier of fact to resolve an important issue. In the instant case, the judge several times reiterated his precautionary instructions admonishing the jury that this testimony was received for the limited purpose of determining the state of mind of the deceased, and not to prove the truth of the threats or of other matters asserted. Although the jury's task in distinguishing these points of view may be difficult, it is not impossible, and in the appropriate case it becomes its responsibility to render such determinations. In this context, the declarations of the deceased revealed her state of mind as it existed during the few weeks immediately preceding her death. These statements, without exception, referred to her then present fear of appellant and the explanation for such fear. None of the statements was objectionable as an expression of apprehension based upon appellant's past conduct. (People v. Hamilton, supra, 55 Cal. 2d 881, 13 Cal.Rptr. 649, 362 P.2d 473.)

The trial judge carefully considered the testimony, most of which was first elicited outside the presence of the jury so that objectionable portions might be deleted. That testimony which survived the court's censorship was thereafter presented in an orderly fashion, subject to the running objection of defense counsel, and judiciously toned to appropriate proportions. Appellant objects that because he never raised the issue of self defense (People v. Atchley, 53 Cal.2d 160, 172, 346 P.2d 764), and because there was no doubt as to the identity of Karen's killer, if any (People v. Merkouris, 52 Cal.2d 672, 682, 344 P.2d 1), the testimony objected to is irrelevant and immaterial to any issue involved. Such is not the case. State of mind evidence was properly admitted in People v. Cooley, 211 Cal.App.2d 173, 27 Cal.Rptr. 543, where the prosecution contended that Spade Cooley's wife was the victim of death by torture while the accused, who was alone with her most of the time, claimed that she was merely an accidental victim. Of course, the record here is totally devoid of evidence of struggle and the lurid details of brutality with which the Cooley trial was replete are strikingly absent. Moreover, there was no eyewitness to the event. Nonetheless, in both cases the victim was alone with the accused, under circumstances of emotional tension, and if homicide took place, only the accused had the opportunity to perpetrate the crime. The issue is remarkably similar: Was death deliberately inflicted or was it accidental? To this issue state of mind evidence may be properly addressed, and it is this principal issue that the trier of fact must resolve.

Finally, however, such testimony may be admitted only if the declarations of the deceased were rendered “in a natural manner and not under circumstances of suspicion” to preserve the essential ‘probability of its trustworthiness.’ (People v. Hamilton, supra, 55 Cal.2d p. 895, 13 Cal.Rptr. p. 657, 362 P.2d 473, 481.) We are presented with the picture of several people in an emotional dilemma. Appellant's affair with Karen had been discovered by his wife; Karen appeared undecided whether to marry or reject her Oriental lover. Perhaps Johnny tried to break off the affair but revived it when Karen told him she was pregnant; perhaps Karen attempted to terminate their relationship for reasons of her own. In any event, appellant remained infatuated and the situation was unsettled when, on December 14, they visited Johnny's apartment while his wife was at work. Appellant, on while his wife was at work. Appellant, on the way there, carefully collected cash and valuable from the bank, executed the ownership documents and placed these together with an executed savings account withdrawal slip on the living room table in an envelope addressed to his wife. Johnny was alone with Karen when his gun discharged, fatally injuring her. He testified that Karen, whose family and friends declared that she customarily avoided firearms, asked to see and perhaps to shoot his pistol. Appellant was right-handed and, as a student of police science, presumably was familiar with weaponry and criminal evidence. Following the incident he contended Karen's death was accidental, but he was reluctant to submit to the paraffin test which disclosed nitrate deposits on his left hand and no nitrate deposits on her hands. This competent factual evidence, if not conclusive, in any event strongly supports the inference that the injury resulting in Karen's death was deliberately, rather than accidentally, inflicted.

Under the circumstances, the jury was entitled to receive the benefit of any additional evidence which might tend to give greater value to their deliberations. Such evidence was made available to them by the prosecution in the from of hearsay statements disclosing Karen's avowed state of mind as it existed on or about the date of her death. No one testified to direct knowledge of appellant's threats, but Karen's statements to others disclosed private conversations during the course of which appellant allegedly directly or indirectly threatened her life or that of her parents. The surrounding circumstances justified their introduction.

Four witnesses testified that Karen told them appellant had threatened to kill her, and no adequate motive for falsification appears. She told Dale Moore her fears because she wanted an observer when she had meetings with Johnny on two occasions shortly before her death. When she missed a quiz in her psychology class, she visited Professor Resch to explain. He noticed then that she was ‘less well kempt’ than usual, her face was flushed and she was fidgety. She told him that she feared an Oriental boy named Johnny whom she had been dating, but she refused to consult her parents or the police because he also had threatened to harm her parents should she be prompted to do so, and he had a bad temper. Karen also told, professor Resch that she recently had met Johnny and his female cousin (actually his wife, Marguerite) at a bowling alley parking lot, where Johnny had displayed a gun, then had unloaded it and put it away, an incident which contributed to her fear.

Her girl friend, Leslie Ann Sautter, one afternoon entered Karen's bedroom while Karen was having a telephone conversation. It appeared that Karen was attempting to placate her caller. Karen afterward explained that she was speaking to ‘Johnny,’ a boy friend who easily flew into a rage. A few days later she told Leslie that Johnny had given her some rings which she refused to accept or wear because she did not feel she could marry him. Johnny allegedly told Karen that if she would not accept the rings he would throw them in the ocean, and he had threatened to kill her if she would not agree to marry him; Karen believed his threat. She and Leslie decided Karen should accept and keep the rings temporarily so she might return them when Johnny was calmer.

Patricia Anne Mullen, another girl friend of the deceased, testified that they worked together at the Broadway Department Store in Del Amo and that late in November Karen told her she was afraid because appellant, who wanted to marry her, had threatened her life. Patricia also related Karen's tale that appellant had displayed a gun when they met in the parking lot near the bowling alley; finally, that Karen had told her that she knew of a Chinese custom, which she believed, whereby a suitor would kill his beloved and thereby save face if she changed her mind after promising to marry him. Another girl friend and coworker, Diane Ijames, testified that at about the same time Karen related the same circumstances to her, excluding to Chinese custom, and in addition that appellant told her he had purchased adjoining cemetery plots for her and for himself. Karen apparently believed the threats, the custom, and the cemetery transaction.

In response to this testimony, Johnny stated that he never had threatened Karen or her parents, that he did not tell her that he would throw the rings he gave her in the ocean if she didn't accept them and that, indeed, she told him that she felt better having the rings. He did not tell her about a Chinese custom for a jilted suitor to kill the woman responsible, nor, indeed, had he ever heard of such a custom. He never had threatened to kill Karen and himself, nor had he purchased cemetery plots for them.

The probative value of the statements extracted from conversations Karen had with these friends and prosecution witnesses within a few weeks before her death and thus introduced, outweighed any potentially prejudicial effect such disclosures might have had. (People v. Finch, 213 Cal.App.2d 752, 770, 29 Cal.Rptr. 420.) It remained for the jury, as trier of the facts, to determine its reliability as well as the credibility of these witnesses.

In summary, the evidence amply supports the verdict and the judgment. The nine-pound pressure required to discharge the homicide weapon, the position on the left temple just above the eye where to bullet entered Karen's skull, and the nature of the close-range wound, all militated against the likelihood that Karen might have been holding the gun when it was fired. Moreover, the paraffin test reluctantly taken by appellant disclosed nitrate on his left hand. It was reasonable for the jury to infer from this evidence that appellant at first refused the test from knowledge of his guilt, and that it was he who fired the weapon. Finally, the jury might infer that appellant planned the incident in this manner from the fact that he carefully placed at his wife's disposal the ownership documents on their automobile, boat and trailer, as well as the savings account withdrawal slip, all endorsed with his signature for her convenience.

The purported appeal from the sentence is dismissed. The judgment is affirmed.

FOURT, Associate Justice.

WOOD, P. J., and LILLIE, J., concur.

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