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From: Pat Valentino
Date: 2/2/01
Time: 12:09:05 AM
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matters asserted, the statements made in the telephone call to the battered women's
shelter, the diary entries, and the letter were expressly limited to the purpose of
showing Nicole's state of mind. Most of the statements were not hearsay at all,
because they were not admitted to prove the truth of the matters asserted.
Thus, under plaintiffs' offers of evidence and the trial court's rulings and
instructions limiting the purpose of the evidence, the statements made in the
telephone call to the battered women's shelter were not admitted to prove: (a) that
her ex-husband had been calling her, begging her to come back to him; (b) that he
was stalking her; (c) that she found him staring at her in a restaurant and a market
and following her vehicle; (d) that he had beaten her throughout the marriage; and
(e) that he had told her different times that if he ever caught her with another man he
would kill her. The statements in the diary were not admitted to prove that Nicole
evaded taxes. The statements in the letter were not admitted to prove: (a) that
Simpson beat Nicole and they lied to the x-ray lab that she fell off her bike; (b) that
the "mad New Years Eve beat up" occurred; and (c) that Simpson committed
"infidelity, wife beating, verbal abuse."
Rather, these statements were offered or admitted only as circumstantial
evidence from which inferences could be drawn concerning how Nicole felt about
the nature of the relationship between her and Simpson. They were offered to
explain her conduct in finally terminating the relationship, which in turn was alleged
to have provoked Simpson to murder. As such, they were not hearsay. (People v.
Ortiz (1995) 38 Cal.App.4th 377, 389-390; 1 Witkin, Cal. Evidence (4th ed. 2000)
Hearsay, §§ 37-39, 198, pp. 719-721, 915.)
A few of the statements directly expressed Nicole's then state of mind: (1) in
the telephone call: (a) she was frightened; (b) she was unnerved and frightened by
the perceived incidents of stalking; (c) she wanted advice because of uncertainty
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whether it was safer to move back in with her ex-husband; and (d) she concluded by
the end of the conversation that she should not move back in with him; (2) in the
diary: (a) she and Simpson "officially split" as of May 22, 1994; (3) in the letter:
(a) she called the police on New Years 1989 "to save her life"; and (b) since that
incident she had never loved Simpson or been the same. These were hearsay to the
extent they were offered to prove the truth of the matter asserted, Nicole's then
feelings or state of mind. (People v. Ortiz, supra, 38 Cal.App.4th at pp. 389-390; 1
Witkin, Cal. Evidence, supra, § 198, p. 915.) But they were admissible under the
state of mind exception to the hearsay rule. Evidence Code section 1250 provides,
"(a) Subject to Section 1252, [5] evidence of a statement of the declarant's then
existing state of mind, emotion, or physical sensation (including a statement of
intent, plan, motive, design, mental feeling, pain, or bodily health) is not made
inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the
declarant's state of mind, emotion, or physical sensation at that time or at any other
time when it is itself an issue in the action; or [¶] (2) The evidence is offered to
prove or explain acts or conduct of the declarant. [¶] (b) This section does not
make admissible evidence of a statement of memory or belief to prove the fact
remembered or believed."
To avoid the force of plaintiffs' argument that all this evidence had a limited
admissible purpose to show Nicole's state of mind, Simpson contends Nicole's state
of mind was irrelevant. He is wrong.
This argument was raised early by Simpson's pretrial motion in limine to
exclude all of the out-of-court statements by Nicole. Goldman's opposition to the
5 Evidence Code section 1252 provides that a statement otherwise admissible under
section 1250 is inadmissible if made under circumstances indicating its lack of
trustworthiness, for example, with a motive to misrepresent or manufacture evidence.
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motion in limine answered it as follows: "Here, Goldman contends that particular
'acts or conduct' of Nicole motivated Simpson to murder her: breaking off their
relationship for good in May 1994, ignoring Simpson at their daughter's June 12
recital, and refusing to include Simpson in a family dinner and celebration
immediately following the recital, after he had flown thousands of miles to be at the
recital. Of course, Simpson's motive is a highly relevant issue because it is
probative of the identity of the killer. See People v. Zack, 184 Cal.App.3d 409,
413-14 (1986). Moreover, at his deposition, Simpson denied all of this conduct,
contending that he (not Nicole) broke off the relationship, that he was not rejected
by Nicole, that he interacted pleasantly with Nicole at the recital, and that he chose
not to go out to dinner with the family. Thus, Nicole's state of mind—her fear of
Simpson and intense hostility toward him for threatening to turn her [in to] the
Internal Revenue Service and forcing her and their children to move out of their
house—not only proves and explains why she engaged in the conduct that plaintiffs
contend motivated Simpson to kill her, but also serves to rebut Simpson's claims to
the contrary." In its pretrial ruling denying Simpson's motion in limine, the court
indicated that although it would not make final determinations until specific
evidence was offered at trial, it was reasonable to assume that the nature of the
relationship between Simpson and Nicole would be a relevant issue.
Consistent with the pretrial memo, Goldman's counsel told the jury in his
opening statement that the evidence would show Simpson and Nicole were engaged
in a deeply emotional, tense, angry conflict in the weeks leading up to the killings,
and that Simpson felt rejection and rage when Nicole attempted to end their
relationship and excluded Simpson from the family circle and celebration at the
recital and post-recital dinner. Counsel for Nicole's estate stated the evidence
would show that in the weeks leading up to the killings Simpson's ego was bruised
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to its core by Nicole's finally ending the relationship, and on the night of the killings
by his exclusion from the family circle, and he committed the killings in a rage.
Counsel for Simpson told the jury the evidence would show the relationship
between Simpson and Nicole was not acrimonious, Simpson was not out of control
when they mutually decided to terminate the relationship and move on with their
lives, and Simpson was not in a foul mood at the recital.
During trial, in his memorandum to the court about admissibility of the
telephone call to the battered women's shelter, Simpson again claimed it should be
excluded on the ground Nicole's state of mind was irrelevant. Goldman's
memorandum replied the statements in the telephone call "explain Nicole's conduct
in ending the relationship with defendant and in rejecting him again on June 12, the
night of the murders," or were "admissible as circumstantial evidence of Nicole's
state of mind. Each statement provides highly probative evidence of Nicole's fear,
and helps explain her conduct in rejecting defendant and not wanting anything to do
with him." In arguing the motion Goldman's counsel contended, "Our theory of the
case, Your Honor, as you probably know, is that the . . . primary motivation for the
crime was retaliation . . . from Ms. Brown's rejection of Mr. Simpson, the
termination of the relationship and the rejection, specifically on June 12, as well,
after the recital. And her state of mind about the relationship, the state of the
relationship, her extreme fear of the defendant, as demonstrated by the phone call
[to] Ms. Ney. It is probative of the fact that . . . she would not want to be with him
and would want to stay as far away from him as possible. [It very much] goes to
her rejection of him." He argued the evidence impeached Simpson's position that
Simpson had put the relationship behind him. He contended the evidence "really
goes to the heart of the motive of the case, as to what's going on in the relationship
in these few days before the murders. As the court in Zack said, antagonism,
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hostility, enmity in the relationship is highly probative and always relevant." The
court agreed with plaintiffs' argument that the evidence was admissible for the
limited purpose offered. Earlier the court had similarly admitted the diary entries.
The court agreed with plaintiffs' contention the diary entries showed Nicole's state
of mind as relevant to the motive issue.
Later when Goldman's counsel sought to cross-examine Simpson about the
letter, Goldman's counsel asserted the letter came within the state of mind exception
to the hearsay rule; Simpson's counsel again argued Nicole's state of mind was not
in issue. The court concluded, "I'm satisfied that the decedent's state of mind has
been put into issue insofar as it is the defendant's contention that the relationship
was a loving relationship and that the defendant had no basis in that relationship
which would cause him to commit the acts resulting in the deaths of the decedents.
So I think that's clearly an issue."
Based on the particular circumstances and plaintiffs' theory of the case, the
trial court reasonably concluded that Nicole's state of mind was in issue, and that
evidence offered for the limited purpose of showing her state of mind was relevant
and admissible. According to plaintiffs' theory of the case, Nicole, after a long
stormy sometimes violent relationship with Simpson and efforts to reconcile,
decided in May of 1994 finally to end the relationship; the final few weeks were
tense; Simpson reacted negatively; finally, on the night of the killings, when
Simpson was excluded from the family gathering he flew into a rage and killed
Nicole, along with Ronald, an unanticipated bystander. The proffered evidence
explained how she was feeling about Simpson, tended to explain her conduct in
rebuffing Simpson, and this in turn logically tended to show Simpson's motive to
murder her. It was not irrelevant that: Nicole had cited prior beatings as a reason
"why we split"; Nicole "never loved [Simpson] since" the New Years 1989 beating;
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Nicole felt they had "officially split" on May 22, 1994; and Nicole on June 7, 1994,
felt frightened and confused about whether to go back with Simpson, but decided
not to. These feelings tended to explain her conduct on the days leading up to the
killings, including the last day, when Simpson's motive was claimed to have arisen.
Simpson contends that because he denied being the perpetrator, the defense
did nothing to put into issue Nicole's state of mind or conduct immediately before
the killings. This does not show the evidence was irrelevant. Even without an
opening statement by Simpson's counsel or testimony by Simpson, plaintiffs were
entitled to present evidence tending to establish motive. Without persuasive
evidence from plaintiffs regarding motive, the jurors might believe there was nothing
in the relationship between Simpson and Nicole which would precipitate a murder.
(See People v. Zack, supra, 184 Cal.App.3d 409, 415 [prior assaults on wife
admissible, husband "was not entitled to have the jury determine his guilt or
innocence on a false presentation that his and the victim's relationship and their
parting were peaceful and friendly"]; People v. Linkenauger, supra, 32 Cal.App.4th
1603, 1615 [same].)
This case, therefore, is not like the cases cited by Simpson where the court
found there was no legitimate disputed issue concerning the hearsay declarant's
state of mind. (Simpson cites People v. Ireland (1969) 70 Cal.2d 522, 529-532
[victim's statement "'I know he's going to kill me'" was not admissible to show
victim's state of mind or conduct preceding death where it was undisputed at trial
that defendant killed her while she was lying on a couch and his defense went to his
mental state]; People v. Arcega (1982) 32 Cal.3d 504, 526-529 [victim's statement
that defendant "'was going to hit her, to beat her up'" was not admissible to show
victim's state of mind or conduct preceding death where defendant admitted killing
the victim while she was asleep and argued only lack of premeditation; defense
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raised no issue that the victim's conduct immediately preceding death in any way
provoked or mitigated the homicide]; People v. Armendariz (1984) 37 Cal.3d 573,
584-587 [victim's statement, 17 months before the killing, indicating fear of the
defendant was not admissible to show victim's state of mind on the night of the
murder, where the defense identified a third person as the killer and raised no issue
about the victim's attitude toward defendant or any issue that the killing was
accidental or justifiable]; People v. Ruiz (1988) 44 Cal.3d 589, 607-610 [victims'
statements of fear of defendant were not admissible to show their states of mind;
victims 1 and 2 were murdered in their sleep and there was no issue as to their
conduct prior to the killings; victim 3's statement did not support prosecution theory
of faltering marriage as motive for killing; but error harmless in light of limiting
instruction]; and People v. Noguera (1992) 4 Cal.4th 599, 621-622 [victim's
statement of fear and hatred of defendant was not admissible to show victim's state
of mind, where her conduct and state of mind were not relevant to any part of the
People's case nor did the defense raise any issue of her state of mind or behavior
before she was murdered, the entire defense being alibi; but error harmless in light
of limiting instruction].)
Here, plaintiffs presented specific theories why Nicole's state of mind about
her relationship to Simpson was relevant to Simpson's reasons for killing her.
Other Points
Simpson raises several other points about the admission of this evidence, all
without merit.
Simpson points out that the state of mind exception to the hearsay rule "does
not make admissible evidence of a statement of memory or belief to prove the fact
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remembered or believed." (Evid. Code, § 1250, subd. (b).) This point is irrelevant
because the evidence was admitted solely for the limited purpose of showing
Nicole's state of mind, not "to prove the fact remembered or believed."
Simpson contends the statements in the call to the battered women's shelter
which tended to identify the caller as Nicole (the caller stated her name was Nicole,
she was Caucasian, she was in her 30's, she had been married 8 years but was
divorced, she had two children under 10, she was living in West Los Angeles, and
her ex-husband was famous) were themselves inadmissible hearsay. They were not.
They were not admitted "to prove the truth of the matter stated," because there was
no material disputed issue in the case concerning Nicole's biographical history.
These statements were introduced only as circumstantial evidence tending to
identify the caller. They were properly admissible for this nonhearsay
circumstantial evidence purpose. (People v. Herman (1920) 49 Cal.App. 592, 595-
596; People v. McGaughran (1961) 197 Cal.App.2d 6, 16; People v. Hess (1970)
10 Cal.App.3d 1071, 1078-1079; Dege v. United States (9th Cir. 1962) 308 F.2d
534, 535-536.)
Simpson contends that even if his hearsay and relevance objections lacked
merit, the trial court nevertheless should have excluded this relevant evidence as
unduly prejudicial, pursuant to Evidence Code section 352. (Fn. 2, ante.) It is for
the trial court, in its discretion, to determine whether the probative value of relevant
evidence is outweighed by a substantial danger of undue prejudice. The appellate
court may not interfere with the trial court's determination to admit the evidence,
unless the trial court's determination was beyond the bounds of reason and resulted
in a manifest miscarriage of justice. (People v. Waidla (2000) 22 Cal.4th 690, 724;
People v. Dyer (1988) 45 Cal.3d 26, 73; People v. Yovanov (1999) 69 Cal.App.4th
392, 406.) "Prejudic[ial]" in Evidence Code section 352 does not mean "damaging"
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to a party's case, it means evoking an emotional response that has very little to do
with the issue on which the evidence is offered. (People v. Karis (1988) 46 Cal.3d
612, 638.) Evidence which has probative value must be excluded under section 352
only if it is "undu[ly]" prejudicial despite its legitimate probative value. (People v.
Waidla, supra, 22 Cal.4th at p. 724 [if it "poses an intolerable 'risk to the fairness
of the proceedings or the reliability of the outcome'"].)
The trial court did not manifestly abuse its discretion in the circumstances
here. As we have noted, the nature of the relationship and Nicole's feelings about
Simpson, especially in the final weeks, were highly relevant to plaintiffs' theory of
the case that Simpson killed Nicole in a rage after she finally ended the relationship
and began excluding him from family activities. As we concluded in the discussion
of the first issue, evidence of prior violence between Simpson and Nicole was
properly admissible. Five such incidents were properly proved either by direct
testimony of third-party eyewitnesses or by Nicole's spontaneous statements to
officers at the time. The killings themselves were violent and suggestive of rage.
Although the telephone call, letter, and diary referred to some of these prior
incidents and suggested there were other beatings, threats, or recent stalking, they
were not admitted for the truth of the matter. They were not unduly inflammatory in
light of all the other admissible evidence of violence. (People v. Yovanov, supra, 69
Cal.App.4th at p. 406.)
The trial court instructed the jury that this evidence was limited to showing
Nicole's state of mind about the relationship.6 Simpson contends the evidence
6 With respect to the telephone call to the battered women's shelter, the court instructed
the jury: "The testimony of Nancy Ney of a telephone call from Nicole was received into
evidence for the limited purpose -- for a limited purpose, and cannot be considered by the
jury for any other purpose. It has been contended variously that Nicole Brown Simpson
was trying to get back together with Mr. Simpson; that she was fearful of him, or that
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should have been excluded entirely on the ground that despite this instruction, there
was too much danger the jury would consider the statements for the truth of the
matters asserted. Simpson attempts to distill from certain cases a rule that it is
impossible for a jury to separate the state of mind of the declarant from the truth of
the facts contained in declarations admitted into evidence solely to show state of
mind. He cites People v. Hamilton (1961) 55 Cal.2d 881, 895-896, People v.
Coleman (1985) 38 Cal.3d 69, 81-86, and Shepard v. United States (1933) 290
U.S. 96, 104-106.
There is no such general rule. In People v. Ortiz, supra, 38 Cal.App.4th 377,
385-394, the Court of Appeal reviewed these authorities. It pointed out that
Hamilton, a 1961 case, was expressly repudiated in the subsequent adoption of the
Evidence Code. "The Law Revision Commission Comments accompanying the
new code sections make clear the code's repudiation of the Hamilton rule." (Ortiz,
[she] did not want to reconcile with him; or that she had a state of mind that was one way
or another at different times. The testimony of Nancy Ney, of the Sojourn House, about
the telephone call was offered by the plaintiff to show Nicole's state of mind regarding
the relationship at the time the call was made, and to explain her conduct as it may relate
to Mr. Simpson at the recital the night of her death. This testimony is received only to
show her state of mind, and to explain her conduct. The jury must not consider the
substance of her statement to Nancy as evidence of any event or whether such event
occurred."
With respect to the letter to Simpson, the court instructed the jury: "You're
instructed that the letter of Nicole Brown Simpson directed to defendant Simpson, that is
Exhibit 732, was received into evidence for the limited purpose of allowing plaintiffs to
offer evidence of the state of mind of Nicole Brown Simpson regarding the relationship
between Nicole Brown Simpson and defendant Simpson, and it cannot be considered by
you as proof of any truth of any matter that is self-contained or alleged in the letter; in
other words, the substance of the letter. The letter cannot be used as evidence to establish
anything in the letter, the truth of anything in the letter. It's received only for the purpose
of allowing the plaintiffs to offer evidence as to what the state of mind of Nicole Brown
Simpson was with respect to her relationshp with Mr. Simpson during that period of
time."
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supra, at p. 387.) When the declarant's state of mind is relevant and the statements
of threats or brutal conduct are circumstantial evidence of that state of mind, the
evidence is admissible so far as a hearsay objection is concerned. "'Evidence Code
Section 352 provides the judge with ample power to exclude evidence of this sort
where its prejudicial effect outweighs its probative value. But, under Section 352,
the judge must weigh the need for the evidence against the danger of its misuse in
each case. The Evidence Code does not freeze the courts to the arbitrary and
contradictory standards mentioned in the Hamilton case for determining when
prejudicial effect outweighs probative value.'" (Id. at pp. 387-388.) "[N]ow that
section 352 codifies a safeguard for the evaluation of such evidence before it can be
admitted, the trial court has a mechanism for considering the potential for misuse on
the unique facts and statements in each case. Where the statement is offered as
relevant circumstantial evidence of the victim's state of mind, the court may
consider [a variety of circumstances, one of which is whether the trial court
believes, based on the particular facts, that the jury cannot follow the limiting
instruction]." (Id. at pp. 391-392.) The general rule is that juries are presumed to
follow a trial court's limiting instruction. (People v. Waidla, supra, 22 Cal.4th 690,
725.) This is "[t]he crucial assumption underlying our constitutional system of trial
by jury" (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17), "the almost
invariable assumption of the law." (Richardson v. Marsh (1987) 481 U.S. 200,
206, 207.) Whether it would be impossible for a jury to follow limiting instructions
is determined by the circumstances of each case, primarily in the trial court's
discretion under Evidence Code section 352. (People v. Ortiz, supra, 38
Cal.App.4th at pp. 386, 388, 394.) Even in two of the cases cited by Simpson
where declarations of the victim's fear of the defendant should not have been
admitted at all, because the victim's state of mind was not genuinely in issue, the
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Supreme Court held the error harmless because the trial court had instructed the jury
the evidence could be considered only for that limited purpose. (People v. Ruiz,
supra, 44 Cal.3d 589, 609-610; People v. Noguera, supra, 4 Cal.4th 599, 622-623.)
For the same reasons we have discussed why the evidence was not unduly
inflammatory, the trial court could reasonably conclude the jury was capable of
following the limiting instruction.
Finally, Simpson contends with respect to the telephone call to the battered
women's shelter that the record does not show the trial court actually exercised its
discretion pursuant to Evidence Code section 352 and actually weighed the
probative value against the potential for undue prejudice. If a proper objection
under section 352 is raised, the record must affirmatively demonstrate that the trial
court did in fact weigh prejudice against probative value. The trial court need not
make findings or expressly recite its weighing process, or even expressly recite that
it has weighed the factors, so long as the record as a whole shows the court
understood and undertook its obligation to perform the weighing function. (People
v. Waidla, supra, 22 Cal.4th 690, 724, fn. 6; People v. Crittenden (1994) 9 Cal.4th
83, 135; People v. Triplett (1993) 16 Cal.App.4th 624, 627-629.)
Simpson's pretrial motions in limine addressed the admissibility of Nicole's
out-of-court statements in general, but not the telephone call to the battered
women's shelter in particular. In ruling on those motions, the trial court stated that
it assumed the nature of the relationship between Simpson and Nicole would be
relevant. The court stated that it would rule on particular specific statements when
they were offered during the trial, and would at that time "make a weighing under
People vs. Ortiz, 38 Cal.App.4th 377, under 352 of the Evidence Code. The Court
is mindful of People vs. Coleman, 38 Cal.3d[] 69, regarding the high threshold of
probative value outweighing its prejudicial effect . . . ." When the issue of the call
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to the battered women's shelter came up later during trial, the court received written
memoranda from plaintiffs and defendant. Defendant's papers addressed primarily
the hearsay/relevance issue of whether Nicole's state of mind was genuinely in
issue. The written motion cursorily suggested that the evidence was more
prejudicial than probative and should be excluded under section 352. The court's
minute order states it "read and considered all papers filed on the issue." The court
invited oral argument on the motion. Both counsel orally addressed only the state of
mind hearsay issue. At the conclusion the court stated, "Well, the Court has reread
People versus Ortiz, 38 Cal.Ap[p].4th 377 . . . . I think on that basis, on the basis
on which the plaintiff has represented that he is offering the testimony, the Court
finds that . . . there is an exception, in view of the Evidence Code, for those
purposes, and the objection is overruled."
Contrary to Simpson's contention, this record shows that the trial court
engaged in the section 352 weighing process. People v. Ortiz, supra, 38
Cal.App.4th at pages 385-397, extensively discussed Evidence Code section 352 in
the context of different types of statements made by the deceased murder victim.
The trial court's remark here that it had reread Ortiz in connection with this motion,
the same case it had cited earlier when it expressly referred to the section 352
weighing process, shows the trial court engaged in that process as to the battered
women's shelter call. (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1845.)
REFERENCE TO LIE DETECTOR
Simpson contends the trial court erred in failing to sustain an initial objection,
and failing to grant a motion for mistrial, when Goldman's counsel cross-examined
Simpson about allegedly taking and failing a lie detector test. We conclude that the
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trial court's admonitions to the jury to disregard any insinuations in counsel's
questions cured any possible prejudice from the inquiry.
Factual Background
During his opening statement to the jury, Simpson's counsel described how
Simpson cooperated with authorities during the early investigation of the murders.
He stated, "Mr. Simpson, through his attorneys, offered the services of some
forensic scientists . . . . It was refused. He offered to take a polygraph. It was
refused." (Italics added.) Plaintiffs' counsel did not object at the time that this was
an improper statement because an offer to take a polygraph test is not admissible
evidence.
During cross-examination of Simpson by Goldman's counsel, Simpson
indicated that when police asked him about taking a polygraph test he wanted to
wait because he was tired, he was having "weird thoughts," and he wanted to find
out more about how a polygraph test works.
Counsel then asked: "Q. And you did take the test, and you failed it, didn't
you? [Simpson's counsel:] Objection. . . . Q. [Goldman's counsel:] You failed it,
true? A. No. [Simpson's counsel:] Objection. A. That's not correct.
Q. [Goldman's counsel:] You got a minus 22? [Simpson's counsel:] Your Honor,
I'm going to object to this."
The objection was then discussed at the bench. Goldman's counsel argued
the opening statement by Simpson's counsel, that Simpson offered to take a lie
detector test and it was refused, implied that Simpson would have taken and
successfully passed one, and thereby "opened the door" for plaintiffs' counsel to
rebut that suggestion by inquiring whether Simpson took one and failed it.