Attorneys for Plaintiff
SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
v.
ORENTHAL JAMES SIMPSON
aka O.J. SIMPSON,
Defendants.
CASE NO.: BA097211
Trial Brief Five
POINTS & AUTHORITIES REGARDING WITNESS COLLIN YAMAUCHI'S REFERENCE TO HAVING HEARD THE DEFENDANT WAS IN CHICAGO
Dept. 103
Hg.: May 25, 1995
SUMMARY OF PERTINENT FACTS
Collin Yamauchi testified on May 24, 1995 on direct examination by Deputy District Attorney Rockne Harmon as follows:
MR. HARMON: OKAY.
Q. BY MR. HARMON: MR. YAMAUCHI, YOU'VE BEEN WATCHING TELEVISION, THE TELEVISED PROCEEDINGS IN THIS CASE OCCASIONALLY?
A. YES
Q. HAVE YOU HEARD THE TERM EXAMINER BIAS?
A. YES.
Q. ARE YOU FAMILIAR WITH IT?
A. WELL, I'D LIKE TO HEAR AN EXPLANATION. BUT I HAVE AN IDEA WHAT IT MEANS.
MR. SCHECK: OBJECTION, YOUR HONOR.
THE COURT: OVERRULED.
Q. BY MR. HARMON: BASED ON WHAT YOU HEARD IN THE MEDIA AT THE TIME OR, YOU KNOW, BEFORE YOU DID THE TEST IN THIS CASE, DID YOU HAVE AN EXPECTATION OF WHAT THE OUTCOME OF THESE TESTS WOULD BE?
MR. SCHECK: OBJECTION.
THE COURT: OVERRULED.
THE WITNESS: WELL, ON THE 13TH, THE LAST THING I HEARD IN THE EVENING - -
MR. SCHECK: YOUR HONOR - -
THE COURT: NONRESPONSIVE.
DID YOU HAVE AN EXPECTATION, YES OR NO?
THE WITNESS: YES.
Q. BY MR. HARMON: AND WHAT WAS THAT BASED ON?
MR. SCHECK: OBJECTION.
THE COURT: OVERRULED.
MR. SCHECK: CALLS FOR HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: LIKE I WAS SAYING, I HEARD ON THE NEWS, WELL, YEAH, HE'S GOT AN AIR-TIGHT ALIBI. HE'S IN CHICAGO AND, YOU KNOW, THAT AND IT'S HIS EX-WIFE AND THIS AND THAT, AND I GO, OH, WELL, HE'S PROBABLY NOT RELATED TO THE SCENE.
THE COURT: ALL RIGHT.
LET ME SEE THE COUNSEL OVER AT THE SIDEBAR.
(See Reporter's Daily Transcript notes, attached hereto as Exhibit 1; emphasis added.)
POINTS AND AUTHORITIES
I. THE WITNESS MADE NO REFERENCE TO ANY STATEMENT OF THE DEFENDANT; THEREFORE, EVIDENCE CODE SECTION 356 DOES NOT EVEN COME INTO CONSIDERATION.
Evidence Code section 356 provides as follows:
Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.
By its terms, section 356 requires that before the remainder of a conversation or writing is admissible, a portion of that conversation or writing must have been testified to by one party. [FN1] For example, People v. Sandoval (1992) 4 Cal. 4th 155, the prosecution admitted into evidence slips of paper which had been attached to an appointment book and weekly planner. Those books simply were not part of a writing given in evidence by the prosecution." (Id. at 177; emphasis added; see generally, Cal. Criminal Law, Procedure and Practice (Cont.Ed.Bar 2nd ed. 1994), Section 30.24, pp. 732-733.) Here, there was no testimony regarding any statement by the defendant. Mr. Yamauchi testified that he formed his own conclusion that the defendant had an "airtight alibi" because he heard on the news late on the evening of June 13 that the defendant was in Chicago. [FN2] He did not hear, nor testify to, any statement of the defendant. Consequently, Evidence Code section 356 has no application.
II. THE COURT PROPERLY OVERRULED THE DEFENSE'S "HEARSAY" OBJECTION BECAUSE THE NEWS REPORT THE WITNESS TESTIFIED TO HEARING WAS NOT OFFERED FOR ITS TRUTH, BUT, RATHER, FOR ITS EFFECT ON THE STATE OF MIND OF THE WITNESS WHEN HE EXAMINED THE EVIDENCE.
The news report that the defendant was in Chicago was offered, not for the truth of the matter asserted (i.e., that the defendant was in Chicago) but, rather for the nonhearsay purpose of showing the impact of that statement on the state of mind of the listener. During the cross-examination of DOJ criminalist Rene Montgomery, Mr. Blasier tried to establish that the witness had an expectation that her test results would be consistent with the defendant being guilty. Consequently, during direct examination of Mr. Yamauchi, the prosecutor sought to lay to rest any notion that there had been any such expectation on Mr. Yamauchi's part by showing that, if anything, Mr. Yamauchi had a bias which would cause him to expect that his testing results would exclude the defendant as a possible suspect. The mention of the news report was properly admitted for that purpose. (See generally, Jefferson, Evidence Benchbook, Vol. 1 (2d ed. 1982), Section 1.4 p. 57.)
Dated: May 25, 1995
Respectfully submitted,
GIL GARCETTI
DISTRICT ATTORNEY
BY: MARCIA R. CLARK,
WILLIAM W. HODGMAN,
CHRISTOPHER A. DARDEN,
CHERI A. LEWIS,
DEPUTY DISTRICT ATTORNEYS
END NOTES
1 Even when a portion of a conversation or writing has been admitted, only that portion which is necessary to place the admitted portion in context is admissible under section 356. (E.g., People v. Pride (1992) 3 Cal.4th 195, 235 ["(W)here one party has introduced part of a conversation, the opposing party may admit any other part necessary to place the original excerpts in context"].)
2 Even if the news report had used the phrase "airtight alibi," that report could not have been based on the defendant's statement to the police. The media did not yet know at that time the content of the defendant's statement to the police. Nor does the defendant, in his statement to the police, claim that he was in Chicago at the time the murders occurred. Nor was his statement an alibi statement. Consequently, the phrase could not have been based in any manner on the defendant's statement to the police. (A copy of a transcript of that statement is attached hereto as Exhibit 2.)
EXHIBIT 1
MR. HARMON: OKAY.
Q. BY MR. HARMON: MR. YAMAUCHI, YOU'VE BEEN WATCHING TELEVISION, THE TELEVISED PROCEEDINGS IN THIS CASE OCCASIONALLY?
A. YES
Q. HAVE YOU HEARD THE TERM EXAMINER BIAS?
A. YES.
Q. ARE YOU FAMILIAR WITH IT?
A. WELL, I'D LIKE TO HEAR AN EXPLANATION. BUT I HAVE AN IDEA WHAT IT MEANS.
MR. SCHECK: OBJECTION, YOUR HONOR.
THE COURT: OVERRULED.
Q. BY MR. HARMON: BASED ON WHAT YOU HEARD IN THE MEDIA AT THE TIME OR, YOU KNOW, BEFORE YOU DID THE TEST IN THIS CASE, DID YOU HAVE AN EXPECTATION OF WHAT THE OUTCOME OF THESE TESTS WOULD BE?
MR. SCHECK: OBJECTION.
THE COURT: OVERRULED.
THE WITNESS: WELL, ON THE 13TH, THE LAST THING I HEARD IN THE EVENING - -
MR. SCHECK: YOUR HONOR - -
THE COURT: NONRESPONSIVE.
DID YOU HAVE AN EXPECTATION, YES OR NO?
THE WITNESS: YES.
Q. BY MR. HARMON: AND WHAT WAS THAT BASED ON?
MR. SCHECK: OBJECTION.
THE COURT: OVERRULED.
MR. SCHECK: CALLS FOR HEARSAY.
THE COURT: OVERRULED.
THE WITNESS: LIKE I WAS SAYING, I HEARD ON THE NEWS, WELL, YEAH, HE'S GOT AN AIR-TIGHT ALIBI. HE'S IN CHICAGO AND, YOU KNOW, THAT AND IT'S HIS EX-WIFE AND THIS AND THAT, AND I GO, OH, WELL, HE'S PROBABLY NOT RELATED TO THE SCENE.
THE COURT: ALL RIGHT.
LET ME SEE THE COUNSEL OVER AT THE SIDEBAR.
STATE RECORDED INTERVIEW OF ORENTHAL JAMES SIMPSON, CONDUCTED BY DETECTIVES PHIL VANATTER AND TOM LANGE, LOS ANGELES POLICE DEPARTMENT, ROBBERY-HOMICIDE DIVISION.
CASE NAME: People v. Orenthal James Simpson
CASE NO.: BA097211
CHARGE: 198 P.C., Murder
DATE OF INTERVIEW: 6/13/94
TIME OF INTERVIEW: 1335 hours
TAPE NO.: 145099 cc #2
DEPUTY D.A.s: William Hodgman & Marcia Clark, Bureau of Central
Operations
LEGEND:
P - Det. Vanatter and/or Det. Lange
S - Orenthal James Simpson
*** - Unintelligible
TRANSCRIPT PROVIDED BY Los Angeles County District Attorney's
Office June 1994
Los Angeles, California, Monday, June 13, 1994; 1:35 P.M.
P . . . my partner, Detective Lange. We're in a interview room in Parker Center. The date is June the 13th, 1994; and the time is 1335 hours, and we're here with O.J. Simpson.
S Orenthal James Simpson, yes.
P And what is your birthdate, Mr. Simpson?
S July 9th, 1947.
P Okay. Prior to us talking to you, as we agreed with your attorney, I'm going to give you your Constitutional Rights.
S Mmnh-mmnh.
P And I would like you to listen carefully. If you don't understand anything, tell me, okay?
S Yeah
P Okay, Mr. Simpson, you have the right to remain silent. If you give up the right to remain silent anything you say can and will be used against you in a court of law. You have the right to speak with an attorney and have an attorney present during questioning.
S Mmnh-mmnh.
P If you so desire and cannot afford one, an attorney will be appointed for you without charge before questioning. Do you understand your rights?
S Yes, I do.
P Are there any questions about that?
S (No audible response).
P Okay. Do you wish to give up your right to remain silent and talk to us?
S Uh, yes.
P Okay. And you give up your right to an attorney present while we talk?
S Mmnh-mmnh -- yes.
P Okay. All right, what we're going to do is we want to --we're investigating, obviously, the death of your ex-wife and another man.
S Someone told us that.
P Yeah. And we're going to need to talk to you about that. Are you -- are you divorced from her now?
S Yes.
P How long have you been divorced?
S Officially? Probably close to two years. But we've been apart a little over two years.
P Have you?
S Yeah.
P What was your -- what was your relationship with her? What was the --
S Well, we tried to get back together and it just didn't work, it wasn't working, and so we -- we was going our separate ways.
P Recently you tried to get back together?
S We tried to get back together for about a year, you know,
where we started dating each other and seeing each other. She
came back and wanted us to get back together, and uh --
P Within the last year you're talking about?
S She came back about a year and four months ago and --
P Mmnh-mmnh.
S -- about us trying to get back together. And, uh, we gave it a shot, and we gave it a shot the better part of a year.
P Mmnh-mmnh.
S And, uh, I think we both knew it wasn't working, and probably three weeks ago or so we said it just wasn't working.
P Okay.
S And, uh, we went our separate ways.
P Okay. The two children are yours?
S Yes.
P And --
P Did she have custody?
S Uh, yeah. We both had joint custody, but she had, uh --
P It's already been through the courts as a joint custody --
S Went through the courts --
P -- situation?
S -- and everything. We had -- everything is done, we have no problems with the kids, we do things together, you know, with the kids and --
P Mmnh-mmnh. How was your -- how was your separation, was that a --
S The first separation?
P Yeah. Was there problems with that?
S Uh, for me it was, big problems, I loved her, I didn't want us to separate.
P Uh-huh. But I -- I understand that she had made a couple of crime reports, annoying crime reports or something?
S Us, we had a big fight, us, about sic years ago on New Year's.
P Mmnh-mmnh.
S You know, she mad the report, I didn't make a report. Uhm, uh, and, uh, then we had an altercation, about a year ago, maybe. It wasn't a physical -- or -- or, you know, I kicked her door or something.
P And then she made a police report on those two occasions?
S Mmnh-mmnh. And I stayed -- stayed right there until the police came and talked to them and --
P Did you get arrested at one time for something?
S No. I mean, five years ago we had a big fight, six years, I don't know.
P Were you arrested then for --
S Uh, no, I ended up doing, uh, community service.
P So they arrested you?
S No.
P -- like that?
S No
P Can I ask. When is the last time you slept?
S I got a couple of hours sleep last night. I mean, I -- I -- you know, I slept a little on the plane, not much. And then when I got to the hotel I was asleep a -- a few hours when, uh -- when, uh -- when, uh, the phone call came.
P Did Nicole have a housemaid that lived there?
S I believe she did.
P Do you know her name at all?
S Uh, Avea, Alvia, something like that.
P We didn't see her there. She had the day off, perhaps?
S I don't know. I don't know what schedule she had her on.
P Okay. Phil, what do you think, we can just maybe recount last night?
P Yeah. What -- when was the -- when was the last time you saw Nicole, O.J.?
S We were leaving the dance recital, she took off and I was talking to her parents.
P Where -- where was the dance recital?
S Uh, Paul Revere High School.
P And was that for one of your children?
S Yeah, for my daughter, Sydney.
P What time was that yesterday?
S Uh, it ended about 6:30, quarter to 7:00, you know.
P Okay.
S Something like that. I -- you know, in the ballpark, right in that area.
P Mmnh-mmnh.
S And, uh, they took off.
P "They"?
S Uh, her and her family; her mother, her father, her sisters, my kids, you know.
P And the children?
S And the two --
P And then -- and then you went your own separate way?
S Yeah. Actually, she left. And then they came back and , uhm, the -- her mother got in a car with her and, uh, and the kids all piled into her sister's car and they --
P Was -- was Nicole driving?
S Yeah.
P What kind of car was she driving?
S Her, uh, black car, the Cherokee.
P Cherokee?
S Chief Cherokee.
P What were you driving?
S My Rolls Royce -- my Bentley, rather.
P So you own that Ford Bronco that's sitting outside?
S Hertz owns it and I, uh -- you know, Hertz lets me use it.
P So that's your vehicle?
S Mmnh-mmnh.
P The one that was parked there on the street?
S Mmnh-mmnh, yeah.
P And it's -- and it's actually owned by Hertz?
S Hertz, yeah. Ford, Hertz.
P Who's -- who's the primary driver on that, you?
S Uh, I drive it, the housekeeper drives it. You know it's kind of a --
P All-purpose type vehicle?
S All-purpose type, yeah. Yeah.
P Mmnh-mmnh.
S It's the only one that my insurance would allow me to let anybody else drive.
P Okay.
P When you drive it where -- where do you park it at home?
P Oh, it depends. I park around --
P You know where it is now, it's on the street or something?
S I always park it on the street.
P You never take it in behind the gate?
S Well, rarely. I mean, I'll bring it in, you know, last -- after I come from golf.
P Yeah.
S And switch to the stuff, you know, and then stuff like that. You know, I did that yesterday, you know.
P When did you last drive it?
S Yesterday.
P What time yesterday?
S In the morning, in the afternoon.
P Okay. Okay, you left her, you're saying, about 6:30 or 7:00, you -- you -- or, she left the recital?
S Yeah.
P And you spoke with her parents?
S Yeah, we're just sitting there talking.
P Okay. What time did you leave the recital?
S Right about that -- we were all leaving. We were all leaving then.
S And then you went --
S And they -- uh, her mother said something about me joining them for dinner and I said, "No thanks."
P Mmnh-mmnh. Where did you go from there, O.J.?
S Uh, home. Uh, home for awhile. And got in my car for awhile, tried to find my girlfriend for awhile. Came back to, uh -- to the house.
P Who was home --
S To the home, right home.
P -- when you got home?
S Kato.
P Kato?
S Yeah.
P Anybody else? Was your daughter there --
S Uhn-uhn.
P -- Arnelle?
S No.
P Isn't that her name, Arnelle?
S Arnelle, yeah.
P Okay. So -- so what time do you think you got back home, actually physically got home?
S 7:00 something.
P 7:00 something?
S Yeah, ***
P And then you left and --
S Yeah, I -- I -- I -- when I -- I'm trying to think, did I leave? Yeah, I'm always -- you know, I had to run and get my daughter some flowers. That was actually during recital, so I ru- -- rushed and got her some flowers. Then I -- then I came home, and then I called Paula as I was going to her house and Paula wasn't home.
P Paula is your girlfriend?
S Girlfriend, yeah.
P Paula who?
S Barbieri.
P Could you spell that for me?
S B-a-r- -- B-a-r-b-i-e-r-i.
P Do you know an address on her?
S No, she lives on Wilshire. But I think she's out of town.
P You got a phone number on her?
S *** Yeah, 47 - -- 470-3468.
P So you didn't see her last night?
S No. We had been -- we had been to a big affair the night before. Then I came back home. I mean, I was -- I was basically at home. I mean, anytime I -- if I was -- whatever time it took me to get to the recital and back, to get to the flower shop and back, I mean, that's the time I was out of the house.
P Were you scheduled to play golf this morning someplace?
S Uh, in -- in, uh, Chicago.
P In Chicago?
S Yeah.
P What kind of tournament was it?
S Uh, it's, uh, Hertz with clients, special clients.
P Oh, okay.
P Promotional thing with Hertz?
S Yeah.
P What time did you leave last night, leave the house?
S Ohhh. To go to the airport?
P Mmnh-mmnh.
S About -- the limo was supposed to be there at, uhm, at 10:45. Normally they get there a little earlier. I was rushing around, and somewhere between then and 11 o'clock.
P So approximately 10:45 to 11:00?
S 11 o'clock, yeah, somewhere in that area.
P And you went by limo?
S Yeah.
P Who's the -- who's the limo service?
S I don't know, you'll have to ask my office.
P Okay.
P Did you converse with the driver at all? Did you talk to him or --
S Uh, he was a -- was a new driver, driver that -- normally I have a regular driver driving, would converse, just --
P Remember his name?
S -- about rushing. No. Just about rushing to the airport, about I live my life on airplanes.
P Yeah.
S -- and in hotels. So that --
P Yeah.
S -- that type of thing.
P What time did your plane leave?
S Uh, 11:45 the plane took off.
P What -- what -- what airlines was it?
S American.
P American? And it was a 11:45 to Chic- -- Chicago?
S Chicago.
P So yesterday you -- you did drive the white Bronco?
S Mmnh-mmnh.
P And about what time -- where did you park it when you drove it home?
S I -- uh, well, the first time probably by the, uh -- by the -- the mailbox.
Well, I'm trying to think if I drove that -- I bring it in the driveway. Normally, I will park it by the mailbox, sometimes ***
P On Ashford or Ashland ***
S On Ashford, yeah.
P Where did you park it yesterday for the last time, do you remember?
S Right where it is.
P Okay.
P Where it is now?
S Yeah.
P Where, on --
S Right on the street there.
P Not on Ashford?
S No, on Rockingham.
P You parked it there?
S Yes.
P About what time was that?
S 8:00 something. Maybe 7, 8 o'clock. 8, 9 o'clock. I don't know, right in that -- right in that area.
P Did you take it to the recital?
S No.
P What time was the recital?
S Over at about 6:30. Like I said, I came home, I got in my car, I was going to see my girlfriend, I was calling here and she wasn't around.
P So you drove the --
S Bronco.
P You got home in the Rolls, in the Rolls --
S Yeah.
P -- and then you got in the Bronco?
S Bronco 'cause my phone was in the Bronco.
P Okay.
S And, uhm -- and 'cause it's the Bronco, it's the Bronco is what I drive.
P Yeah.
S You know, I drive -- rather drive it than any other car.
And I -- you know, and, uh -- and, uh, as I was going over there I called here a couple of times and she wasn't there, and that she had left a message. And then I checked my messages, she had left me a message that she wasn't there, that she had to leave town. And then I came back and, uh, ended up sitting with Kato.
P Okay. And about what time is this again that you parked the Bronco?
S 8:00 something, maybe.
P ***
S And early, relatively -- he hadn't taken a -- he hadn't done a Jacuzzi, we hadn't gone -- we had went and got a burger and I come home and kind of leisurely got ready to go. You know, I mean, we had done a few things --
P And you weren't --
S -- after this.
DECLARATION OF PERSONAL SERVICE
STATE OF CALIFORNIA COUNTY OF LOS ANGELES
ss. CASE NUMBER: BA097211
I, the undersigned, hereby declare under penalty of perjury, that the following is true and correct:
I am over eighteen years of age, not a party to the within cause and employed in the Office of the District Attorney of Los Angeles County, with principal offices located at 18000 Criminal Courts Building, 210 West Temple Street, Los Angeles, California 90012; that the District Attorney is one of the attorneys for the People in the above-entitled matter. On May 25, 1995, I served the foregoing "Trial Brief five -- POINTS AND AUTHORITIES REGARDING WITNESS COLLIN YAMAUCHI'S REFERENCE TO HAVING HEARD THE DEFENDANT WAS IN CHICAGO" on the defendant in said action by personally serving true copies thereof on two of his attorneys of record, Robert L. Shapiro and Johnnie L. Cochran, Jr. at 210 W. Temple Street, Los Angeles, California 90012.
Executed May 25, 1995 at Los Angeles, California.
/s/