California Court of Appeals, Fourth District, Third Division
Original proceedings; petition for a writ of prohibition/mandate to challenge an order of the Superior Court of Orange County, No. 10CF3053 Richard F. Toohey, Judge.
Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Mark S. Brown, Assistant Public Defender, and Martin F. Schwarz, Deputy Public Defender, for Petitioner.
Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy District Attorney, for Real Party in Interest.
BEDSWORTH, ACTING P. J.
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 with no specialized scientific training testified about the forensic evidence forming the basis for the prosecution’s case. Over petitioner’s objection, the investigator was also allowed to convey the expert opinions of two doctors who believe Linda died from nicotine poisoning. Petitioner contends the investigator’s lack of knowledge about the scientific evidence and expert opinions he conveyed rendered his testimony unreliable, and therefore he should not have been bound over for trial. We disagree and deny his petition for relief.
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 didn’t 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 6:00 p.m., and petitioner joined her there a while later. Around midnight, petitioner was awakened by their cat and noticed Linda was not breathing. He called 911, but the responding paramedics were unable to revive her.
Linda’s autopsy was performed by Dr. Joseph Halka, a pathologist with the Orange County coroner’s office. Initially, Dr. Halka was unable to determine the cause of Linda’s death, but after additional toxicology testing was conducted, he determined she died from nicotine and cadmium poisoning. He believed the poison was either injected or ingested.
As reflected in Linda’s death certificate, Dr. Halka reached that conclusion in 1995. However, petitioner was not charged until 2010, after still more toxicology testing was done. Conducted under the supervision of Dr. Neil Benowitz at the University of California at San Francisco (UCSF), that testing indicated Linda had a lethal amount of nicotine in her system when she died. Dr. Benowitz surmised the drug was administered to Linda within two hours of her death, and she likely died from “massive nicotine poisoning.”
In light of these findings, the police tracked down petitioner in Salina, Kansas. In an interview conducted in November 2010, petitioner told investigators he received about $300, 000 from Linda’s life insurance policies and another $100, 000 or so in stock options and pension benefits. He also admitted that after Linda died, he made a fraudulent insurance claim on a Rolex watch that belonged to her. (Petitioner reported the watch had been stolen; he had actually given it to Linda’s sister.) At the end of the interview, the investigators arrested petitioner for murdering Linda. When informed that Linda died from nicotine poisoning, petitioner, who admitted Linda did not smoke, said, “I don’t know how to respond to this.”
In a complaint filed on November 9, 2010, petitioner was charged with first degree murder and insurance fraud. (Pen. Code, §§ 187, subd. (a); 550, subd. (a)(1).) Special circumstance allegations the murder was committed by means of poison and for financial gain were also alleged. (§ 190.2, subds. (a)(1) & (a)(19).)
The above evidence was presented at petitioner’s preliminary hearing by investigators with the Orange County Sheriff’s Department. Their testimony was based primarily on information they obtained from conducting witness interviews, so much of it was hearsay. Petitioner does not challenge all of what they had to say. Rather, he targets the expert opinions of Dr. Halka and Dr. Benowitz and the scientific testing they relied on to formulate their opinions. Petitioner contends that evidence should have been excluded because the investigator who conveyed it to the court did not know enough about the subject matter of his testimony to ensure it was reliable.
That investigator was Ken Hoffman. Hoffman has been a peace officer since 1984 and is currently assigned as a homicide investigator with the Orange County Sheriff’s Department. As part of that assignment, Hoffman assisted in the investigation surrounding Linda’s death. At the request of the prosecutor, and in anticipation of petitioner’s preliminary hearing, he interviewed Dr. Halka and Dr. Benowitz about their findings and opinions in the case, as reflected in the reports they prepared. Hoffman had copies of those reports, as well as Dr. Halka’s and Dr. Benowitz’s resumes, when he interviewed them.
Explaining his interview with Dr. Halka, Hoffman testified he spoke with him by telephone on September 27 and 28, 2011. Dr. Halka informed him he is a licensed physician and has practiced forensic pathology for nearly 40 years. He began working as a medical examiner for Orange County in 1986, and in that capacity he has conducted approximately 15, 000 autopsies to determine the cause and manner of death. During that time, he has also testified as an expert witness on those issues.
Dr. Halka told Hoffman that when he conducted Linda’s autopsy in 1994, he was initially unable to determine the cause of her death. Therefore, he ordered special toxicology testing to be performed on samples of Linda’s nails, skin, hair, blood, urine and tissue. That testing was conducted by an outside lab that was under contract with Orange County to perform such testing. In Dr. Halka’s words, this testing went “beyond the standard toxicology and microbiology testing” that is done in most cases. When the testing data came back, Dr. Halka analyzed the results and determined Linda’s death was a homicide. More specifically, he opined Linda suffered ...