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From: Pat Valentino
Date: 2/2/01
Time: 12:06:09 AM
Filed 1/26/01 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SHARON RUFO et al.,
Plaintiffs and Respondents,
v.
ORENTHAL JAMES SIMPSON,
Defendant and Appellant.
B112612
(Super. Ct. Nos. SC031947,
SC036340, SC036876)
APPEAL from judgments of the Superior Court of Los Angeles County,
Hiroshi Fujisake, Judge. Affirmed.
Baker, Silberberg & Keener, Robert C. Baker, and Daniel Patrick Leonard
for Defendant and Appellant.
Hornberger, Ghazarians & Brewer and Michael A. Brewer for Plaintiff and
Respondent Sharon Rufo.
Mitchell Silberberg & Knupp, Thomas P. Lambert, Peter B. Gelblum, Yvette
Molinaro, and Jeffrey D. Goldman; O'Melveny & Myers and Daniel M. Petrocelli
for Plaintiff and Respondent Fredric Goldman.
Edward J. Horowitz and John Quinlan Kelly for Plaintiff and Respondent
Louis H. Brown.
.2
INTRODUCTION
These consolidated civil actions arise from the murders of Nicole Brown
Simpson and Ronald Lyle Goldman. A jury found that defendant Orenthal James
(O.J.) Simpson committed these homicides willfully and wrongfully, with
oppression and malice. Sharon Rufo and Fredric Goldman, the parents and heirs of
Ronald Goldman, were awarded $8.5 million compensatory damages on their cause
of action for wrongful death. (Code Civ. Proc., §§ 377.60, 377.61.) Fredric
Goldman as personal representative of the estate of Ronald Goldman was awarded
minor compensatory damages and $12.5 million punitive damages on the survival
action, the cause of action Ronald Goldman would have had if he survived. (Code
Civ. Proc., §§ 377.30, 377.34.) Louis H. Brown as personal representative of the
estate of Nicole Brown Simpson was awarded minor compensatory damages and
$12.5 million punitive damages on the survival action, the cause of action Nicole
Brown Simpson would have had if she survived. Defendant Simpson appeals from
the judgments.
Defendant does not contend that the evidence is legally insufficient to show
that he is the person who committed the murders. He seeks reversal for a new trial
on the grounds that the trial court committed reversible error in numerous rulings on
admission and exclusion of evidence and in denying a mistrial based on juror
misconduct. He also contends the compensatory and punitive damages awards are
excessive as a matter of law. We conclude the trial court did not err, and the
compensatory and punitive damages are not excessive. We affirm the judgments.
Decedent Ronald Goldman has the same last name as one of the present
parties, plaintiff Fredric Goldman. Decedent Nicole Brown Simpson shares the
names of two of the present parties, plaintiff Louis H. Brown and defendant
.3
Orenthal James Simpson. For clarity in the narrative and discussion that follow, we
refer to the present parties by their last names (i.e., Goldman is plaintiff Fredric
Goldman, and Simpson is defendant Orenthal James Simpson), and to the decedents
by their first names, Ronald and Nicole.
FACTS
In a prior criminal trial, Simpson was acquitted of the murders of Nicole and
Ronald. In the present civil trial, the jury concluded that Simpson killed Nicole and
Ronald. Simpson does not contend on appeal that the evidence is legally
insufficient to support the jury's verdict. He contends, however, that the judgments
should be reversed for a new trial on the grounds that evidence was erroneously
admitted or excluded and the award of damages is excessive.
No exhaustive summary of the underlying facts is necessary. Factual details
relating to admission or exclusion of the disputed items of evidence are addressed in
the discussion of those issues. The following summary is sufficient to give context
to the legal discussion that follows.
Nicole and Ronald were stabbed to death on the night of June 12, 1994, in
front of Nicole's home on Bundy Drive in Los Angeles.
Plaintiffs contended that Simpson, Nicole's ex-husband, had the motive to kill
Nicole in a rage. On several prior occasions during their marriage Simpson had
physically abused Nicole. In 1992 they separated. In May 1993 they agreed to try
for a year to see if they might reconcile. In April 1994 Simpson was encouraged
they would reconcile. But on May 22, 1994, Nicole terminated the relationship.
Simpson retaliated by threatening to cause serious income tax problems for Nicole
concerning their arrangement regarding his residence on Rockingham Avenue in Los
.4
Angeles. On June 7, 1994, Nicole telephoned a battered women's shelter hotline
and stated she was frightened because her ex-husband was stalking her, and she
sought advice whether it might be safer to move back in with him. By the end of
that conversation she decided not to move back with him. On June 12, 1994,
Simpson's and Nicole's young daughter performed in a dance recital. Simpson flew
from New York to Los Angeles to attend it. Simpson was in a foul mood that day.
At the dance recital, Simpson and Nicole sat apart and did not interact. When the
recital ended, Nicole excluded Simpson from a post-recital family dinner.
Ronald was a waiter at the restaurant where the dinner occurred. Afterwards,
Nicole telephoned the restaurant about a pair of eyeglasses left at the dinner.
Ronald may have been killed because he encountered the murder of Nicole while
delivering the eyeglasses to her home.
Shortly after the killings, Nicole's and Ronald's bodies were found in front of
her residence. Police responded to the scene and collected physical evidence.
Numerous drops of blood at the scene were proved by DNA evidence to be
Simpson's. There was a left-hand leather glove, of a rare make that Nicole had
previously purchased for Simpson, that matched the right-hand glove later found at
Simpson's residence. Bloody footprints at the scene were made by distinctive
luxury shoes similar to those worn by Simpson in the past. A knit cap at the scene
contained hair fibers matching Simpson's hair. Ronald's shirt contained hair fibers
matching Simpson's hair, and cloth fibers matching bloodstained socks found at
Simpson's residence.
Other physical evidence from Simpson's Ford Bronco and Simpson's home
on Rockingham pointed to Simpson as the murderer. The Bronco contained blood
from Simpson, Nicole, and Ronald. Simpson's freshly-dripped blood was found on
his driveway. Simpson had recent cuts and abrasions on his hands. The right-hand
.5
glove matching the left-hand glove from the crime scene was found on a path next to
Simpson's house. This glove contained Simpson's blood, Nicole's blood, Ronald's
blood, Nicole's hair, and Ronald's hair. A pair of socks found in Simpson's
bedroom contained Simpson's and Nicole's blood.
Faced with overwhelming physical evidence, the defense suggested that some
evidence was planted by police officers or ineptly contaminated during collection,
storage, or testing.
Simpson testified and claimed that he was at home on Rockingham during the
time of the killings, prior to being picked up by a limousine driver for a ride to the
airport to fly to a previously-scheduled event in Chicago. Plaintiffs presented
evidence that Simpson had time to commit the murders, go home, catch his ride to
the airport, and dispose of evidence in a small bag that he would not allow the
limousine driver to handle and which was never seen again. On the flight back to
Los Angeles after being notified of Nicole's death, Simpson told a passenger that
there were two victims killed in the garden area of Nicole's house, although those
details had not been provided to him in the notification. After being informed that
police were going to arrest him, Simpson and a friend fled in Simpson's Bronco.
Simpson had his passport, a fake goatee and mustache, $8,000 to $9,000 in cash,
and a loaded gun. Simpson talked about committing suicide.
CONTENTIONS
Simpson contends the trial court erred in admitting evidence that Simpson
previously abused Nicole.
Simpson contends the trial court erred in admitting evidence of statements
made by Nicole, which he contends were inadmissible hearsay or irrelevant.
.6
Simpson contends the trial court erred in excluding defense evidence of prior
testimony of Mark Fuhrman, and of validation studies performed at the Los Angeles
police crime laboratory.
Simpson contends the trial court erred in denying a mistrial after plaintiffs'
counsel referred to Simpson's alleged failure to pass a polygraph test, or after a
juror's misconduct was discovered.
Simpson contends the compensatory damages awarded to the parents of
Ronald on their action for wrongful death are excessive.
Simpson contends the trial court erroneously admitted expert opinion on the
value of Simpson's name and likeness as an element of his present net worth, and
that the punitive damages awarded are excessive.
We find no merit to any of these contentions and therefore we affirm the
judgments.
ADMISSIBILITY OF SIMPSON'S PRIOR ABUSE OF NICOLE
Simpson contends the trial court erred in admitting evidence of five instances
of Simpson's prior abuse of Nicole. This evidence showed: (1) outside a veterinary
clinic around the spring of 1983, Simpson approached Nicole's car, tried to pull off
Nicole's fur coat, and hit Nicole in the face, saying he "didn't buy this fur coat for
you to go fuck somebody else"; (2) in 1984, Simpson lost his temper and struck
Nicole's Mercedes with a baseball bat; (3) at a public beach in July 1986, Simpson
slapped Nicole and she fell to the sand; (4) on New Years Day 1989, Simpson and
Nicole had a violent argument during which he pulled her hair and struck her on the
face or head, for which Simpson pleaded nolo contendere to spousal abuse; and
(5) during a rage in October 1993, Simpson broke a door of Nicole's residence.
.7
Simpson contends this evidence showed nothing more than bad character or a
propensity for violence, which is inadmissible under Evidence Code section 1101,
subdivision (a).1 But that section further provides, "Nothing in this section prohibits
the admission of evidence that a person committed a crime, civil wrong, or other act
when relevant to prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident . . .) other than his or her
disposition to commit such an act." (Evid. Code, § 1101, subd. (b); People v.
Ewoldt (1994) 7 Cal.4th 380, 393.) The trial court denied Simpson's motion in
limine to exclude this evidence. The court ruled the evidence was admissible to
show motive, intent, and identity.
Simpson contends that since he denied being the perpetrator, the intent with
which the killings were committed was not genuinely in issue. He contends the
prior instances of abuse did not tend to establish a motive for these killings and were
not similar to these killings. He misplaces reliance on cases stating that in order to
be admissible to prove identity, prior acts and charged acts must bear striking and
distinctive similarities so as to support a reasonable inference that the same person
committed both. (People v. Ewoldt, supra, 7 Cal.4th at p. 403; People v. Haston
(1968) 69 Cal.2d 233, 246.)
The requirement for a distinctive modus operandi does not apply when the
prior and charged acts involve the same perpetrator and the same victim. The courts
have concluded that evidence of prior quarrels between the same parties is
obviously relevant on the issue whether the accused committed the charged acts.
1 Evidence Code section 1101, subdivision (a) provides, "Except as provided in this
section [and certain other sections], evidence of a person's character or a trait of his or
her character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion."
.8
(People v. Cartier (1960) 54 Cal.2d 300, 311; People v. Daniels (1971) 16
Cal.App.3d 36, 46; People v. Haylock (1980) 113 Cal.App.3d 146, 150; People v.
Zack (1986) 184 Cal.App.3d 409, 413-415; People v. Linkenauger (1995) 32
Cal.App.4th 1603, 1609-1614; see People v. Beamon (1973) 8 Cal.3d 625, 633;
People v. Benton (1979) 100 Cal.App.3d 92, 98; People v. McCray (1997) 58
Cal.App.4th 159, 171-173; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026.)
People v. Zack, supra, 184 Cal.App.3d 409, discusses this principle. The
defendant was convicted of murdering his wife, and the evidence included the
defendant's prior assaults on her. After reviewing the precedents, the court
concluded, "From these precedents, as well as common sense, experience, and
logic, we distill the following rule: Where a defendant is charged with a violent
crime and has or had a previous relationship with a victim, prior assaults upon the
same victim, when offered on disputed issues, e.g., identity, intent, motive, etcetera,
are admissible based solely upon the consideration of identical perpetrator and
victim without resort to a 'distinctive modus operandi' analysis of other factors."
(Id. at p. 415.) Similarly in People v. Linkenauger, supra, 32 Cal.App.4th 1603, the
defendant was convicted of murdering his wife, and the evidence included prior
marital discord and assaults on her. The court stated, "Appellant contends that
evidence of marital discord and prior assaults does not support the inference that he
intended to commit a premeditated murder. We disagree. The evidence had a
tendency in reason to show appellant's intent to beat, torture, and ultimately murder
JoAnn. It was properly admitted to show ill will and motive. [¶] Evidence
concerning marital discord and appellant's prior assaults also supports the inference
that appellant committed the offense. . . . As we have indicated, by reason of the
marital discord and his prior assaults upon JoAnn, the jury could logically draw the
inference that appellant had again assaulted her." (Id. at pp. 1613-1614, citations
.9
omitted.) In People v. Daniels, supra, 16 Cal.App.3d 36, the defendant was
convicted of attempted murder of his wife, and the evidence included prior assaults
upon her. The court stated, "Evidence showing jealousy, quarrels, antagonism or
enmity between an accused and the victim of a violent offense is proof of motive to
commit the offense. Likewise, evidence of threats of violence by an accused against
the victim of an offense of violence is proof of the identity of the offender." (Id. at
p. 46, citations omitted.)
Here the trial court correctly concluded the evidence of Simpson's prior
abuse of Nicole was relevant to motive, intent, and identity. (People v.
Linkenauger, supra, 32 Cal.App.4th at pp. 1613-1614.) The court did not abuse its
discretion under Evidence Code section 352 2 in concluding that the probative value
of this evidence outweighed the potential prejudicial effect. (People v.
Linkenauger, supra, 32 Cal.App.4th 1603, 1614; People v. McCray, supra, 58
Cal.App.4th 159, 173.) The fact that the prior instances occurred several years
before the killings did not preclude their admission into evidence. (People v.
McCray, supra, 58 Cal.App.4th at p. 173.) This fact merely affected the weight
that the jury would accord to this evidence.
2 "The court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury." (Evid. Code, § 352.)
.10
HEARSAY ISSUES REGARDING VARIOUS STATEMENTS BY NICOLE
Simpson contends the trial court erred in admitting evidence of statements
made by Nicole, which Simpson contends were inadmissible hearsay or irrelevant.3
These may be divided into three categories: (1) statements made to police or
security officers at the times of the 1984 and 1989 incidents discussed in the
previous section, (2) statements made by telephone to a battered women's shelter on
June 7, 1994, and (3) statements made in writing in Nicole's diary and a letter to
Simpson.
Factual Background
Statements at the Times of the Prior Incidents
Concerning the 1984 incident in which Simpson struck Nicole's automobile
with a baseball bat, Mark Day testified that he was a security patrol officer who was
called to the Simpson residence on Rockingham in response to a disturbance. As he
approached the front door Nicole came running across the front yard. She was very
upset. She stated that "he" (Simpson) had lost his temper and that she was afraid.
Day then observed the damage to the Mercedes and spoke to Simpson who admitted
he had lost his temper.
Concerning the 1989 incident, Los Angeles Police Detective John Edwards
went to the Rockingham residence in response to a 911 call. When Edwards
3 "(a) 'Hearsay evidence' is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
.11
buzzed at the gate of the residence, he observed Nicole, wearing only a bra and
sweat pants, run from the bushes across the driveway to a control box and collapse
onto it. She appeared to push on a button repeatedly while yelling to Edwards,
"he's going to kill me, he's going to kill me." She then ran to the gate and when it
opened she "came flying through that open area of the gate, ran directly to
[Edwards] and collapsed onto [Edwards]." She was cold, wet, and shivering. "She
was crying, she was hysterical, and appeared to be very frightened and exhausted."
She repeated "he's going to kill me, he's going to kill me," and when Edwards
inquired, who, she said O.J. Simpson. Edwards observed multiple injuries on her
forehead, eye, cheek, lips, and neck and asked what happened. Nicole answered
"O.J. had hit her, kicked her, slapped her, and pulled her hair."
Telephone Call to Battered Women's Shelter
After considering Simpson's motion to exclude the following evidence
entirely, the court admitted it for the limited purpose of showing Nicole's state of
mind.
Nancy Ney was a director of Sojourn House, a battered women's shelter.
She had training regarding domestic abuse. She was on duty receiving calls on the
shelter's telephone hot line on June 7, 1994, five days before the murders. She
received a call from a woman who stated that her name was Nicole, she was
Caucasian, she was in her thirties, she had been married eight years but was
divorced, she had two children under 10, she was living in West Los Angeles, and
stated. [¶] (b) Except as provided by law, hearsay evidence is inadmissible. [¶] (c)
This section shall be known and may be cited as the hearsay rule." (Evid. Code, § 1200.)
.12
her ex-husband was famous.4 Nicole stated that she was frightened. Her
ex-husband had been calling her begging her to come back to him and he had been
stalking her. She related that she found him staring at her in a restaurant and a
market and following her when she drove. This unnerved her and she was
frightened by it. Upon questioning by Ney whether her ex-husband had ever beaten
her or threatened her, Nicole replied he had beaten her throughout the marriage and
told her a few different times that if he ever caught her with another man he would
kill her. Nicole asked for Ney's opinion whether it might be safer for her and the
children to move back in with him. Ney and Nicole discussed this, and by the end
of the conversation Nicole came to the conclusion that in the long run it would not
be best for her to move back in with him. Nicole indicated she did not wish to come
to the shelter. She thanked Ney for helping her and letting her express her feelings.
Ney invited her to call back in a week but did not hear from her again.
Written Statements
Diary Entries. After considering Simpson's objection to the following
evidence in its entirety, the court admitted it for the limited purpose of showing
Nicole's state of mind.
Edited pages from Nicole's diary were admitted into evidence as exhibit 735.
The entry for May 22, 1994, states "we[']ve officially split," and then describes the
intended arrangements for child visitations. The entry for June 3, 1994, states that
when Simpson came over to her residence at 8:30 p.m. to pick up the children for
4 Ney had listened to a tape in evidence of a 911 call Nicole made on another occasion.
Ney testified the voice on the tape was consistent with the voice of the woman Ney spoke
to who identified herself as "Nicole."
.13
visitation, he commented to her, "'You hung up on me last nite, you're gonna pay
for this bitch, you're holding money from the IRS, you're going to jail you fucking
cunt. You think you can do any fucking thing you want, you've got it coming—I've
already talked to my lawyers about this bitch—they'll get you for tax evasion bitch
I'll see to it. You're not gonna have a fucking dime left bitch.'" Nicole's entry
adds, "I just turned around and walked away."
Letter. Portions of an undated letter in Nicole's handwriting addressing
Simpson were introduced into evidence for the limited purpose of showing Nicole's
state of mind. The redacted version, exhibit 732, includes the following: "O.J.[:] I
think I have to put this all in a letter. A lot of years ago I used to do much better in
a letter. I'm gonna try it again now. I'd like you to keep this letter if we split, so
that you'll always know why we split. I'd also like you to keep it if we stay
together, as a reminder. . . . There was also that time before Justin [was born and a
few months] after Sydney [was born] I felt really good about how I got back in
shape [and] we were out[,] you beat the holy hell out of me [and] we lied at the x-ray
lab [and] said I fell off a bike. Remember!?? And since Justin['s] birth is the
mad New Years Eve beat up. . . . I just don't see how that compares to infidelity,
wife beating, verbal abuse. . . . And if I wanted to hurt you or had it in me to be
anything like the person you are I would have done so after the New Year incident.
But I didn't even do it then. I called the cops to save my life whether you believe it
or not. But I didn't pursue anything after that. I didn't prosecute, I didn't call the
press [and] didn't make a big charade out of it. I waited for it to die down and
asked for it to. But I've never loved you since or been the same."
The trial court expressly limited the scope of this evidence to Nicole's state of
mind and not the truth of what occurred in the underlying incidents. In addition to
instructing the jury generally that evidence admitted for a limited purpose may not
.14
be considered for any other purpose, the court at least twice instructed the jury
specifically regarding the letter that it was admitted into evidence only "for the
limited purpose of demonstrating Nicole Brown Simpson's state of mind regarding
her relationship with defendant Simpson. You are not to consider any of the
statements contained in that letter as evidence that the events described in the letter
occurred."
Discussion
Spontaneous Statements to Police
As discussed in the previous section, the prior incidents of abuse were
relevant and admissible to show motive, intent, and identity. Nicole's statements
describing those incidents were therefore relevant, and they were admissible if they
came within an exception to the hearsay rule. Nicole's statements to responding
officers on the dates of the 1984 and 1989 incidents were properly admitted under
the spontaneous statement exception to the hearsay rule. Evidence Code section
1240 provides, "Evidence of a statement is not made inadmissible by the hearsay
rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act,
condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously
while the declarant was under the stress of excitement caused by such perception."
This codifies a common law exception to hearsay. The requirements for this
exception are: (1) there must be an occurrence startling enough to produce nervous
excitement and render the utterance spontaneous and unreflecting; (2) the utterance
must be made before there has been time to contrive and misrepresent, while the
nervous excitement still dominates and the reflective powers are still in abeyance;
.15
and (3) the utterance must relate to the circumstance of the occurrence preceding it.
(People v. Poggi (1988) 45 Cal.3d 306, 318.) A statement that satisfies these
elements is deemed sufficiently trustworthy to be received as evidence for the truth
of the matter asserted despite its hearsay nature. (Ibid.; People v. Hughey (1987)
194 Cal.App.3d 1383, 1392-1393.)
Simpson contends "a period of time had transpired between the event and the
statements," and Nicole "had an opportunity to 'contrive and misrepresent' and to
regain her 'reflective powers.'" The record supports the trial court's contrary
conclusion. Whether the requirements of the spontaneous statement exception are
satisfied in any given case is largely a question of fact. The determination of this
question is vested in the trial court. The trial court necessarily exercises discretion
in deciding it. The discretion of the trial court is at its broadest when it determines
whether the nervous excitement still dominated and the reflective powers were still
in abeyance. (People v. Poggi, supra, 45 Cal.3d at pp. 318-319; People v. Farmer
(1989) 47 Cal.3d 888, 904.) The trial court here did not abuse its discretion in
concluding Nicole's statements to the officers satisfied the spontaneous statement
exception. (People v. Poggi, supra, 45 Cal.3d at pp. 319-320; People v. Hughey,
supra, 194 Cal.App.3d 1383, 1388; People v. Forgason (1979) 99 Cal.App.3d 356,
365.)
State of Mind Evidence
Hearsay is a statement made other than while testifying as a witness, which
statement is offered in the trial to prove the truth of the matter asserted in the
statement. (Evid. Code, § 1200, subd. (a), fn. 3, ante.) Unlike the two statements
to officers concerning prior incidents which were admitted to prove the truth of the