Curry v. Superior Court

Opinion

Petitioner Paul Marshal Curry stands accused of murdering his wife Linda for financial gain by means of poison. Although Linda died in 1994, petitioner was not charged until 2010, after forensic testing confirmed Linda, a nonsmoker, had lethal levels of nicotine in her system when she died. At the preliminary hearing, a homicide investigator

FACTS

Petitioner and Linda met while working at the San Onofre nuclear power plant in the late 1980’s. They got married in 1992, and a short time later they had a barbeque at their house that Linda’s boss and his wife, Betty Reeder, attended. At the barbeque, Reeder heard petitioner boast that he could kill a person without being apprehended. Specifically, he claimed he could make a deadly poison in his garage and administer it to someone without ever getting caught.

In 1993, Linda was hospitalized due to severe nausea, vomiting and diarrhea. Despite extensive testing, her doctors were unable to determine the cause of her illness. While Linda was in the hospital, the police asked her if she knew anyone who might want to harm her. She said petitioner might want to kill her because they were having money problems.

Upon her release from the hospital, Linda spoke with her former boyfriend Bill Sandretto. Linda told Sandretto petitioner wanted her to purchase a $1 million life insurance policy, but she was reluctant to do so. In fact, she said she did not even want petitioner to be the beneficiary under her existing policies. She also told Sandretto that she and petitioner had no sex life.

In January 1994, Linda was hospitalized with the same symptoms, and again doctors were unable to determine their cause. One of Linda’s nurses during that time was Nancy Row. One day, Row spoke with petitioner after she saw him leave Linda’s room. Petitioner told Row that Linda was fine, but a couple of minutes later Linda’s intravenous alarm went off. Upon responding to Linda’s room, Row found her intravenous port broken in an odd way. Row had never seen a port broken in that manner before, so she called the police. After interviewing petitioner about the incident, the sheriff’s department reported it as a “potential tampering.”

Five months later, in the early morning hours of June 10, 1994, Linda died in her home. According to petitioner, Linda had said she was feeling tired when she came home from work the night before. She went to bed around

Although the toxicology testing Dr. Halka relied on to formulate his opinions was “special” and “above the norm,” Hoffman testified it was still not to the level of testing that was conducted by Dr. Benowitz and his team at UCSF. During his investigation, Hoffman learned that when Linda’s autopsy was conducted in 1994, samples of her blood and urine were sent to Dr. Benowitz’s lab. The record does not disclose what type of testing Dr. Benowitz conducted or what results he obtained at that time. However, in 2009, Dr. Benowitz’s team retested the samples. Since this was a key component of the prosecution’s case, Hoffman focused on the results of this retesting when he interviewed Dr. Benowitz in preparation for petitioner’s preliminary hearing.

By way of background, Dr. Benowitz told Hoffman he has been a professor of medicine and psychiatry at UCSF since 1974 and is currently the head of the school’s division of clinical pharmacology and experimental therapeutics. He holds a California medical license and is certified by the American Board of Internal Medicine in toxicology and clinical pharmacology. In addition, he has conducted extensive research and published numerous studies and articles on the impact of nicotine on the human body.

Dr. Benowitz informed Hoffman that besides inhalation, nicotine can also enter a person’s body by means of ingestion, absorption or injection. He said that if someone were to soak a cigarette or chewing tobacco in robbing alcohol, the tobacco could be “reduce[d] . . . down,” and its nicotine-laden contents could then be introduced into a person’s system by the latter three means. And if that were to occur, the person would likely experience an increased heart rate, nausea and vomiting. Nicotine being a poison, a high dosage could result in death.

Speaking to this case, Dr. Benowitz told Hoffman he supervised his colleagues Dr. Peyton Jacob and research analyst Lisa Yu when Linda’s blood and urine samples were retested in 2009. They used a gas chromatograph with nitrogen phosphorus detection to ascertain the nicotine level in the samples. Describing this testing procedure as a “well-established scientific method,” Dr. Benowitz told Hoffman his lab utilizes it “quite often.”

To find out more about the testing, Hoffman also spoke to Yu and Dr. Jacob. Yu said she conducted the actual testing and Dr. Jacob oversaw her

DISCUSSION

Petitioner argues the court erred in admitting the expert opinions of Dr. Halka and Dr. Benowitz, and without their opinions there is insufficient evidence to support the charges against him. The People contend the expert opinions were properly admitted, and even without them, there is sufficient evidence to hold petitioner over for trial. We believe the magistrate properly admitted the challenged evidence. Despite Hoffman’s lack of scientific training, his testimony was sufficiently reliable to justify the admission of Dr. Halka’s and Dr. Benowitz’s expert opinions into evidence.

The purpose of a preliminary hearing is to establish whether there is probable cause to believe the defendant has committed a felony. (§ 866, subd. (b).) “ ' “Probable cause is shown if a man [or woman] of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” ’ [Citations.]” (Rideout v. Superior Court (1967) 67 Cal.2d 471 , 474 [ 62 Cal.Rptr. 581 , 432 P.2d 197 ].) That is the sole inquiry. Guilt or innocence is not determined. It is not a vehicle for discovery. (§ 866, subd. (b); Whitman v. Superior Court (1991) 54 Cal.3d 1063 , 1080-1081 [ 2 Cal.Rptr.2d 160 , 820 P.2d 262 ] (Whitman).)

In order to streamline the preliminary hearing process, the voters enacted Proposition 115 in 1990. That measure amended the California Constitution and the Penal Code to allow hearsay evidence at preliminary hearings. (Whitman, supra, 54 Cal.3d 1063 , 1072-1073.) Although hearsay evidence is generally inadmissible at trial, section 872 states that a finding of probable cause at a preliminary hearing “may be based in whole or in part upon the sworn testimony of a law enforcement officer . . . relating the statements of declarants made out of court offered for the truth of the matter asserted.” (§ 872, subd. (b).)

Section 872 requires the testifying officer either have five years of law enforcement experience or have completed a training course on the investigation and reporting of cases. (§ 872, subd. (b).) But the statute does not restrict the type of hearsay declarants to which it applies. Because of this, courts have interpreted section 872 broadly to include not only the extrajudicial statements of crime victims and percipient witnesses, but law enforcement

The statute is not without limits, however. In Whitman, our Supreme Court made clear that Proposition 115 “does not authorize a finding of probable cause based on the testimony of a noninvestigating officer or ‘reader’ merely reciting the police report of an investigating officer. . . . The testifying officer . . . must not be a mere reader but must have sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement.” (Whitman, supra, 54 Cal.3d at pp. 1072-1073.)

The testifying officer in Whitman lacked such knowledge. He was not involved with the defendant’s arrest for driving under the influence, nor was he personally aware of the circumstances under which the defendant’s sobriety tests, including a blood test, were conducted. And because he did not speak with the arresting officer about his report, he was completely ignorant of the circumstances under which the report was made. However, at the preliminary hearing, his testimony about the contents of the report served as the main basis for the defendant’s bindover. (Whitman, supra, 54 Cal.3d at pp. 1068-1069.)

The Supreme Court found this extremely troubling. The problem was, the testifying officer’s connection to the case was so attenuated there was no way for the magistrate to ensure the information conveyed from the arrest report was reliable. The court was particularly concerned the testifying officer “was unable to answer potentially significant questions regarding the methods and circumstances of [the arresting officer’s] investigation, including the time the report was written, the details of the sobriety tests given . . . , and [the defendant’s] pupil reaction and degree of dilation. Indeed, [the testifying officer] was even uncertain how long [the arresting officer] had been employed on the force or even whether [the arresting officer] was a male or [a] female.” (Whitman, supra, 54 Cal.3d at pp. 1074—1075.)

Given these evidentiary gaps, the Supreme Court determined the hearsay evidence presented at the preliminary hearing lacked sufficient indicia of reliability to support the defendant’s bindover. (Whitman, supra, 54 Cal.3d at p. 1075.) As a warning for future cases, the court also cautioned that “[s]imilar uncertainties are inherent in any procedure in which the testifying officer acts as no more than a ‘reader’ of another officer’s investigative report” and simply “parrot[s]” what is in that report. (Id. at pp. 1075, 1073.)

Still, petitioner argues that in light of the complexity of the investigation and the testing techniques involved in this case, Hoffman did not know enough about the substance of his testimony to meaningfully assist the court in assessing the reliability of the information he conveyed. In so arguing, petitioner relies heavily on Hosek, supra, 10 Cal.App.4th 605 , a case from the Fifth District Court of Appeal.

Like Whitman, Hosek was a drunk driving case. However, unlike Whitman, the arresting officer in Hosek actually testified at the defendant’s preliminary hearing. After explaining the factual basis for the arrest, the officer testified about the defendant’s blood test, which was analyzed by a criminalist named Steve Woicheson. (Hosek, supra, 10 Cal.App.4th at pp. 607-608.) The heart of the case was the admissibility of the interview statements that Woicheson made to the officer in anticipation of the preliminary hearing.

Describing those statements, Hosek explained that Woicheson told the officer he “is certified by the Department of Health to perform blood-alcohol analysis, and his laboratory is licensed by the Department of Health. Woicheson has a bachelor of arts degree in police science, with a minor in chemistry. He has completed a 120-hour course on blood-alcohol analysis and a 40-hour update course. Woicheson tested defendant’s blood sample using a testing method he has employed on more than 10,000 occasions. . . . Woicheson reported the blood sample . . . contained .18 percent alcohol.” (Hosek, supra, 10 Cal.App.4th at p. 608.)

On cross-examination, the testifying officer in Hosek admitted he did not know the name of the machine that produced that result, how the machine worked or what safeguards for reliability were utilized in testing the defendant’s blood sample. (Hosek, supra, 10 Cal.App.4th at pp. 607-608.) However,

Does that mean that Dr. Halka’s opinion regarding the cause of Linda’s death should have been excluded as unreliable? We think not. While that information might have been helpful, it is not required. The law allows pathologists to rely on toxicology testing performed by third parties in formulating their opinions about the cause of a person’s death, as the case of People v. Catlin (2001) 26 Cal.4th 81 [ 109 Cal.Rptr.2d 31 , 26 P.3d 357 ] (Catlin) makes clear.

In Catlin, the defendant was convicted of killing his mother, Martha, by means of paraquat poisoning. The conviction rested in part on the testimony of Dr. Dollinger, a pathologist who conducted Martha’s autopsy. (Catlin, supra, 26 Cal.4th at p. 102.) Because Dr. Dollinger had no previous experience with paraquat poisoning, and because he relied on toxicology testing conducted by an outside lab, the defendant argued he should not have been allowed to give his opinion that Martha died from paraquat poisoning.

The Supreme Court disagreed. In upholding Dr. Dollinger’s expert testimony, the court stated: “[A] pathologist commonly has expertise in interpreting both the clinical evidence of disease or tissue damage and laboratory results showing the presence of disease agents or toxic materials in human tissue. [Citation.] Dr. Dollinger testified that he had performed in excess of 11,000 postmortem examinations or autopsies and that he had studied the medical and scientific literature regarding paraquat toxicology. We do not believe that Dr. Dollinger’s reliance upon laboratory results performed by other professionals required the trial court to find him unqualified to offer an expert opinion on the cause of Martha’s death. [Citation.] Dr. Dollinger had sufficient specialized training, in addition to the particular experience of having performed the autopsy on Martha, to have reached an informed conclusion as to the cause of her death, despite the circumstance that he had not previously performed an autopsy in a case in which the cause of death was paraquat poisoning.” (Catlin, supra, 26 Cal.4th at pp. 132-133, fh. omitted.)

Dr. Halka has practiced in the field of pathology for nearly 40 years. He has conducted approximately 15,000 autopsies and is an expert in determining the cause and manner of death. Given his vast experience, and considering he personally conducted Linda’s autopsy, we believe he was sufficiently qualified to render an opinion on the cause of Linda’s death. Even though his training and experience in the particular area of nicotine and cadmium poisoning were not disclosed at the preliminary hearing, and even though he relied on lab testing conducted by other professionals, his expert opinion that Linda died from nicotine and cadmium poisoning was sufficiently reliable for preliminary hearing purposes. We therefore conclude the magistrate properly overruled petitioner’s objections to his opinion in that regard.

Sufficient indicia of reliability also accompanied Dr. Benowitz’s expert opinions. As Hoffman explained, Dr. Benowitz is a board-certified toxicologist who heads UCSF’s division of clinical pharmacology and experimental therapeutics. And he has published numerous articles and studies on how nicotine affects the human body. Although there was no evidence as to whether Dr. Benowitz’s lab was licensed when it tested Linda’s blood and urine samples, it is reasonable to believe his eminent scientific qualifications imbued his opinions with a degree of reliability.

Hoffman’s testimony made clear that in addition to Dr. Benowitz, Dr. Jacob and research analyst Yu were also involved in the process of testing and analyzing Linda’s blood and urine samples. Dr. Jacob oversaw Yu during the actual testing, and then they both met with Dr. Benowitz to discuss and interpret the testing data. Thus, three different scientists, all of whom have experience in nicotine testing and analysis, had input in the testing process and contributed to the final results. The fact they collaborated as a group suggests that there were checks and balances in the testing process.

To be sure, not much was known about the particular testing device they utilized. Indeed, Hoffman said he does not know how a gas chromatograph works or how it was used to test Linda’s samples. Nor did he know anything about calibration frequency or quality control measures in Dr. Benowitz’s lab.

However, Hoffman did more than merely ascertain raw measurement data from Dr. Benowitz. Recognizing the data would mean little to most nonscientists, Hoffman questioned Dr. Benowitz about what the testing results meant in practical terms. Dr. Benowitz explained that a nicotine level of 1,120 nanograms per milliliter was “extraordinarily high” and “likely to be fatal” in Linda’s situation. And to bring home this point, he compared it to another case he had worked on that involved “extreme nicotine poisoning.” He said Linda’s nicotine level was three times higher than the person in that case, so it was easy to understand the basis for Dr. Benowitz’s ultimate opinions. As the People rightly assert, this comparison provided meaning and context to the raw testing data Hoffman related to the court. Despite its complexity, the testing evidence was not so sophisticated so as to defy understanding by the magistrate.

Moreover, Dr. Benowitz described the testing process as a “well-established scientific method” which he and his colleagues have used “quite often.” No exact figure was given in terms of usage, but it was reasonable for the magistrate to conclude the process, like that in Hosek, was rather routine. There is nothing in the record to suggest Dr. Benowitz expressed any doubt about the testing results or that they were somehow inaccurate, invalid or untrustworthy.

All things considered, we are satisfied Dr. Benowitz’s opinions were sufficiently reliable for purposes of petitioner’s preliminary hearing. It is clear Hoffman did not merely “parrot” Dr. Benowitz’s extrajudicial statements at the hearing but instead went to appropriate lengths to enable him to accurately describe the circumstances under which the statements were made “so as to increase the reliability of the underlying evidence.” (Whitman, supra, 54 Cal.3d at p. 1074.) While he could not conduct a seminar on the detection of nicotine poisoning or the intricacies of gas chromatography, he was adequately prepared to aid the magistrate’s probable cause determination. We therefore conclude the magistrate correctly admitted his testimony about Dr. Benowitz’s findings.

Viewed in conjunction with Dr. Halka’s opinions, and the rest of the evidence that was presented at the preliminary hearing, Dr. Benowitz’s opinions provided ample probable cause to believe petitioner murdered Linda by means of poison and for financial gain. We thus affirm the magistrate’s decision to bind petitioner over for trial on those charges, as well as the