Supreme Court of California Justia
Docket No. S176213

People v. Rutterschmidt


Filed 10/15/12 (see lead case, S177046, and companion case, S176886, also filed 10/15/12)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S176213
v.
Ct.App. 2/5 B209568
OLGA RUTTERSCHMIDT et al.,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA306576
____________________________________)

This is the third of three cases before us involving the federal Constitution‟s
right to confront adverse witnesses. (U.S. Const., 6th Amend.) The two
companion cases are People v. Lopez (Oct. 15, 2012, S177046) ___ Cal.4th ___,
and People v. Dungo (Oct. 15, 2012, S176886) ___ Cal.4th ___.
Here, defendant Helen Golay and codefendant Olga Rutterschmidt1 were in
their mid-70‟s when they were charged with murdering two men — one in 1999,
the other in 2005 — by running over each of them with a car. Issued in each
victim‟s name were life insurance policies listing defendant Golay and
codefendant Rutterschmidt as beneficiaries. They collected $589,124.93 on one

1
We granted defendant Golay‟s petition for review but denied codefendant
Rutterschmidt‟s petition. Defendant Golay has asked us to place her name in the
caption of the case, to ensure that if she later files a habeas corpus petition in
federal court, “the United States Supreme Court knows she was a party to this
proceeding.” We deny Golay‟s request because we generally use the name
appearing in the Court of Appeal‟s decision, which in this matter showed
Rutterschmidt in its caption.
1



victim‟s life insurance policies; with respect to the other victim, Golay received
$1,540,767.05, and Rutterschmidt $674,571.89.
As relevant here, the prosecution‟s theory was that one of the two victims
(McDavid) had been drugged before he was killed. To prove this point, the
prosecution presented the testimony of a laboratory director who, relying on
reports not prepared by him, testified that testing of the victim‟s blood samples by
analysts at his laboratory had determined the presence of drugs that could have
caused drowsiness. According to defendant Golay, that testimony violated her
Sixth Amendment right to confront and cross-examine the analysts who had tested
the blood samples. Because any error was harmless, we uphold the Court of
Appeal‟s decision affirming the judgment of conviction.
I. FACTS AND PROCEDURAL HISTORY
A. Murder of Paul Vados
In 1997, Paul Vados, then about 70 years old, moved into an inexpensive
apartment on South Fedora Avenue in Los Angeles. The off-site apartment
manager testified that Vados appeared to have no job and was generally drunk; his
apartment was filthy. Twelve-year-old Norma Ceja, the daughter of the on-site
manager, testified that she and her mother would bring food to Vados when he
was too drunk to care for himself. According to Ceja, Vados was visited about
twice a month by codefendant Rutterschmidt, who said she was Vados‟s sister.
Once, Ceja‟s mother saw Rutterschmidt and another elderly White woman at
Vados‟s apartment. (At that time, defendant Golay and Rutterschmidt were each
about 70 years old.)
Between 1997 and 1999, applications for at least six policies insuring
Vados‟s life were made on his behalf. Some policies listed either defendant Golay
or codefendant Rutterschmidt as a beneficiary, while others listed both.
2

Rutterschmidt was listed as Vados‟s cousin and Golay as his fiancée. In fact,
Rutterschmidt and Vados were unrelated, and lacking is evidence of a romantic
involvement between Golay and Vados.
On the morning of November 8, 1999, the body of 73-year-old Vados was
found lying in an alley near North La Brea Avenue in Los Angeles, about a mile
from Rutterschmidt‟s home. Los Angeles Police Officer Lee Willmon, who came
to the scene, found no identification papers on the body. Head and chest injuries
suggested that Vados had been run over by a car, but Officer Willmon found no
glass fragments or car parts at the scene. Vados had no leg fractures, which,
according to forensic pathologist Louis Pena, ordinarily occur when a person who
is standing or walking is fatally struck by a car. Based on the nature of the
injuries, the grease marks on Vados‟s clothes, and the body‟s location
(perpendicular to the alley), Officer Willmon concluded that Vados, while lying in
the alley, was run over by a slow-moving vehicle.
Nine days later, defendant Golay and codefendant Rutterschmidt reported
to the police that Vados had been missing for over a week. Rutterschmidt, who
signed the missing person report, described herself as Vados‟s cousin. Thereafter,
Rutterschmidt told the off-site manager of Vados‟s apartment that she had been
“in charge of” Vados and would remove his belongings from the apartment. A
month or so after Vados‟s death, defendant Golay telephoned Officer Willmon for
a copy of the police report on Vados‟s death. She said that she was a “one-time
fiancée” of Vados and that Rutterschmidt was Vados‟s cousin.
Golay and Rutterschmidt collected $589,124.93 on the insurance policies
taken out on Vados‟s life.
3

B. Murder of Kenneth McDavid
In September 2002, defendant Golay leased, and paid for, an apartment for
Kenneth McDavid, who had been homeless and living outside a church in
Hollywood. In the spring of 2004, McDavid invited two friends, Patrick Lamay
and Amy Matte, to stay in the apartment. McDavid told Lamay that at the request
of Golay and codefendant Rutterschmidt, he had signed an insurance policy on his
life.
Between November 2002 and March 2003, Golay and Rutterschmidt
submitted 17 applications for insurance policies on McDavid‟s life. Thirteen
policies were issued by various insurance companies. As had occurred with
murder victim Vados, most of the policy applications described Golay as
McDavid‟s fiancée and Rutterschmidt as his cousin, and some policies listed either
Golay or Rutterschmidt as a beneficiary, while others listed both.
In January 2004, codefendant Rutterschmidt, accompanied by another
elderly woman, bought a used Mercury Sable station wagon from a car dealer.
Rutterschmidt said she was buying the car for a friend named Hilary Adler, whose
driver‟s license Rutterschmidt showed to the dealer. Rutterschmidt asked that the
car be registered in Adler‟s name, with an address on South Croft Avenue in Los
Angeles. This, however, was not the address shown on Adler‟s driver‟s license.
Adler testified that she did not know Rutterschmidt and had never lived on South
Croft Avenue. Allen‟s purse, containing her driver‟s license, had (before
Rutterschmidt‟s purchase of the car) been stolen from the Spectrum Club in Santa
Monica; defendant Golay‟s daughter Kecia was a member of that club.
On October 30, 2004, codefendant Rutterschmidt came to McDavid‟s
apartment with a hired, armed security guard. She told McDavid to leave, and told
the guard to stay in the apartment for a week to prevent anyone from entering.
Defendant Golay paid a portion of the guard‟s fee.
4

At approximately 1:00 a.m. on June 22, 2005, nine months after McDavid‟s
eviction from the apartment, his dead body was found lying in an alley near the
corner of Westwood Boulevard and Santa Monica Boulevard in Los Angeles. Los
Angeles Police Officer Michael McGann came to the scene, as did Kelli
Blanchard, an investigator with the Los Angeles County coroner‟s office.
According to Officer McGann, abrasion marks on McDavid‟s body indicated that
he had been dragged, and investigator Blanchard saw a “possible tire imprint” on
the front of McDavid‟s jeans, but the site had no skid marks, no pieces of glass,
and no other parts belonging to a car, which Blanchard would have expected if
McDavid had been accidentally struck by a car. Near the body, McGann and
Blanchard found an undamaged bicycle and bicycle helmet. As was the case with
murder victim Vados, grease was on McDavid‟s clothing and his legs were not
fractured.
Two businesses near the scene had video surveillance cameras. Images
from one camera, which took photographs every one to two seconds, showed a car
driving through the alley shortly before midnight and stopping close to the spot
where McDavid‟s body was later found; after the car‟s lights went off for about
five minutes, the car backed up, its headlights came on, and it continued down the
alley, stopping about 75 feet beyond the place where McDavid‟s body was
discovered. The other camera‟s video images showed that the car was either a
Mercury Sable station wagon or a Ford Taurus.
Around 11:55 on the night of McDavid‟s death, an emergency road service
received a call on a cellphone (registered to defendant Golay‟s daughter Kecia)
from a woman giving her name as Golay. She said she was at the corner of
Westwood Boulevard and Santa Monica Boulevard in Los Angeles and needed
towing of her car, a 1999 Mercury Sable. The car was towed, at Golay‟s request,
to a location near Golay‟s home in Santa Monica. At 1:00 a.m., a call was made
5

from Kecia‟s cellphone to codefendant Rutterschmidt‟s cellphone. Two minutes
later, a call was made from Rutterschmidt‟s cellphone to Kecia‟s cellphone.
In August 2005, Rutterschmidt, claiming to be McDavid‟s cousin, asked
the police for a copy of the report on McDavid‟s death in the alley. Rutterschmidt
and Golay then filed claims under the insurance policies on McDavid‟s life.
Golay collected $1,540,767.05, and Rutterschmidt $674,571.89.
In May 2006, the police arrested Golay and Rutterschmidt. Shortly
thereafter, the police surreptitiously recorded a conversation between the two in a
police interview room. In the conversation, Rutterschmidt blamed Golay for
buying too many insurance policies, Golay responded: “[Y]ou better be quiet.
You better not know anything.”
In Golay‟s house, police found a pill container bearing a prescription label
for Ambien (a sleeping pill), but containing a crushed powder that later was
determined to have Vicodin (a pain killer), Venlafaxine (an antidepressant that
causes drowsiness), and Temazepam (an anti-anxiety drug that causes
drowsiness). Also found were two pill containers with prescription labels for
Vicodin (prescribed for Golay), and pill containers with prescription labels for
Venlafaxine and Temazepam (prescribed for Golay‟s daughter, Kecia).
The Mercury Sable station wagon that codefendant Rutterschmidt had
bought in 2004 was impounded and sold at a lien sale after it was found
abandoned. In May 2006, the Los Angeles Police Department repurchased the
car. When criminalist Cheryl Hill examined the car‟s undercarriage, she found
human blood, hair, and tissue samples. The tissue samples matched murder victim
McDavid‟s DNA profile; the probability that a randomly selected person would
have the same profile was one in 10 quadrillion.
6

C. Toxicology Analysis of Murder Victim McDavid’s Blood
The prosecution‟s theory was that defendant Golay had drugged McDavid
before killing him. To prove this, the prosecution presented the testimony of
Joseph Muto, a toxicologist and a certified blood-alcohol analyst.
Muto said he was the laboratory director of the Los Angeles County
Department of the Coroner, and that four laboratory analysts working under
Muto‟s supervision had tested samples of McDavid‟s blood in July of 2005, two
weeks after his death. The tests showed that McDavid‟s blood contained alcohol,
zolpidem (the generic form of sleep aid Ambien) and hydrocodone (the generic
form of painkiller Vicodin). (As mentioned earlier on p. 6, after arresting Golay
and Rutterschmidt the police found prescription drug containers for Ambien and
Vicodin in Golay‟s house.)
Laboratory director Muto explained that after the testing the four analysts
gave the data generated by their equipment to clerical staff, who then prepared a
report reflecting the test results. After the report was “peer reviewed,” the clerical
staff entered the data into a computer, which generated a final report. Muto then
reviewed the report to correct clerical errors or inaccuracies, to ensure staff
members had used the proper procedures, and to ensure that the information had
been peer reviewed. After that review, Muto signed the laboratory report. His
signature, Muto said, indicated that he had gone “through every step of the
procedure [just described] and found that the analyses were done in the normal
course of business and were accurate . . . .”
Additional testing of McDavid‟s blood occurred in July 2006, a year after
his death. That laboratory report too was reviewed by laboratory director Muto.
He testified that according to the report, murder victim McDavid‟s blood showed
the additional presence of topiramate, an anticonvulsant with side effects of
sedation and dizziness.
7

Golay objected to Muto‟s testimony, contending that it violated her Sixth
Amendment right to confront at trial the laboratory analysts who had tested
murder victim McDavid‟s blood samples. The trial court overruled the objection.
(The prosecution did not introduce the laboratory reports into evidence.)
Another prosecution witness, forensic toxicologist Vina Spiehler, testified
that the combination of drugs found in murder victim McDavid‟s body would
cause a person who did not regularly use those drugs to fall asleep, and would
cause a regular user who had developed a tolerance for them to become drowsy
and confused.
D. Verdict and Appeal
The jury found both Golay and Rutterschmidt guilty of two counts of first
degree murder and two counts of conspiracy to commit murder; it also found
special circumstances of multiple murder and murder for financial gain. The trial
court sentenced both defendants to life imprisonment without possibility of parole.
The Court of Appeal affirmed the judgment.
As relevant here, the Court of Appeal rejected Golay‟s contention that
laboratory director Muto‟s testimony regarding two reports prepared by the
laboratory (which stated that laboratory tests showed the presence of drugs and
alcohol in murder victim McDavid‟s blood samples) violated Golay‟s Sixth
Amendment right to confront and cross-examine the analysts who performed the
tests described in the reports. Moreover, the Court of Appeal stated, even if there
was a confrontation right violation, the error was not prejudicial. We granted
Golay‟s petition for review.
II. BRIEF SUMMARY OF FOUR HIGH COURT DECISIONS RELEVANT HERE
As mentioned earlier on page 1, this case is a companion to two other cases.
All three involve a criminal defendant‟s federal constitutional right to confront
8

adverse witnesses. Pertinent are four recent decisions of the United States
Supreme Court, which we have discussed in detail in the other two cases. A brief
summary follows.
The first in the high court‟s quartet of cases is Crawford v. Washington
(2004) 541 U.S. 36 (Crawford), which held that admission of an out-of-court
statement against a defendant does not violate the Sixth Amendment‟s
confrontation clause unless the statement is “testimonial” (id. at pp. 53-56).
Crawford did not define the term “testimonial,” but it mentioned several possible
definitions, by several sources, of statements that are testimonial in nature,
including “ „extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions,‟
[citation]; [and] „statements that were made under circumstances which would
lead an objective witness reasonably to believe that the statement would be
available for use at a later trial . . .‟ [citation].” (Id. at pp. 51-52.) The
prosecution‟s use of a testimonial out-of-court statement against a defendant,
Crawford said, ordinarily violates the defendant‟s confrontation right unless the
person who made the statement is unavailable as a witness and the defendant has
had a previous opportunity for cross-examination. (Id. at p. 59.)
Five years later, the high court decided Melendez-Diaz v. Massachusetts
(2009) 557 U.S. 305 (Melendez-Diaz). In that case, which involved charges of
cocaine distribution and trafficking, the prosecution at trial introduced into
evidence “certificates of analysis,” which had been prepared by nontestifying
laboratory analysts and stated that a substance found in plastic bags in the
defendant‟s car was determined to be cocaine. The high court held that the
laboratory certificates fell “within the „core class of testimonial statements‟ ” (id.
at p. 310) and thus, under Crawford, supra, 541 U.S. 36, their use at trial violated
the defendant‟s right to confront the analysts who prepared them. As Melendez-
9

Diaz explained, each of the laboratory certificates by the nontestifying analysts
was (1) “a „ “solemn declaration or affirmation made for the purpose of
establishing or proving some fact” ‟ ” (Melendez-Diaz, supra, at p. 310),
(2) “functionally identical to live, in-court testimony” (id. at pp. 310-311),
(3) “ „made under circumstances which would lead an objective witness
reasonably to believe that [it] would be available for use at a later trial‟ ” (id. at
p. 311), and (4) created “to provide „prima facie evidence of the composition,
quality, and the net weight‟ ” (ibid.) of the substance found in the plastic bags
seized from the defendant‟s car.
Two years later, in 2011, the high court decided Bullcoming v. New Mexico
(2011) 564 U.S. ___ [131 S.Ct. 2705], which involved a charge of driving while
intoxicated. At trial, the prosecution introduced into evidence a report by
laboratory analyst Curtis Caylor. The report included Caylor‟s “certificate of
analyst” (Bullcoming, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2710]) stating the
correctness of his report‟s conclusion that a blood sample taken at the defendant‟s
arrest had an illegally high level of alcohol. Caylor did not testify; a colleague
did. Although the testifying colleague was familiar with the laboratory‟s testing
procedures, he had neither participated in nor observed the testing by Caylor. The
high court held that the admission at trial of nontestifying analyst Caylor‟s
laboratory report violated the defendant‟s right to confront Caylor as an adverse
witness. The court noted that unlike the laboratory certificates in Melendez-Diaz,
supra, 557 U.S. 305, which were statements sworn before a notary public attesting
to the truth of the reported test results, Caylor‟s certificate was not a sworn
declaration. Nevertheless, the high court pointed out, “Caylor‟s certificate [was]
„formalized‟ in a signed document” (Bullcoming, supra, 564 U.S. at p. ___ [131
S.Ct. at p. 2717]) — the laboratory report — and the report made reference to New
Mexico court rules that “provide for the admission of certificate blood-alcohol
10

analyses” (ibid.). These “formalities” (ibid.) the high court concluded, were
“more than adequate” (ibid.) to qualify Caylor‟s laboratory report as testimonial in
nature and therefore inadmissible.
In June of this year, 12 days after we heard oral argument in this matter and
while it was pending before us, the high court decided Williams v. Illinois (2012)
567 U.S. ___ [132 S.Ct. 2221] (Williams). At issue in Williams was testimony by
Illinois State Police forensic biologist Sandra Lambatos that a DNA profile
(derived from semen on vaginal swabs taken from a rape victim) produced by a
Maryland laboratory matched a DNA profile (derived from a sample of the
defendant‟s blood) produced by the Illinois State Police Laboratory.
The plurality opinion by Justice Alito was signed by the Chief Justice as
well as Justices Kennedy and Breyer; in a separate concurring opinion Justice
Breyer explained why he joined Justice Alito‟s opinion “in full” (Williams, supra,
567 U.S. at p. ___ [132 S.Ct. at p. 2252] (conc. opn. of Breyer, J.)). The plurality
concluded, based on two alternative grounds, that Lambatos‟s expert testimony did
not violate the Sixth Amendment‟s confrontation right. First, the plurality
reasoned, Lambatos‟s testimony regarding the Maryland laboratory‟s report on the
DNA profile was admitted not for its truth but only for the limited purpose of
explaining the basis of Lambatos‟s independent conclusion, based on her
expertise, that the defendant‟s DNA matched the DNA in the semen found on the
vaginal swabs. (Id. at p. ___ [132 S.Ct. at p. 2228] (plur. opn. of Alito, J.).)
Alternatively, the Williams plurality reasoned, there was no confrontation right
violation because the Maryland laboratory‟s report was not “for the primary
purpose of accusing a targeted individual” (id. at p. ___ [132 S.Ct. at p. 2243]
(plur. opn. of Alito, J.)). Indeed, the plurality noted, the defendant was not yet a
suspect when the report was produced. (Ibid.)
11

In a concurring opinion, Justice Thomas in Williams agreed with the
plurality‟s conclusion that Lambatos‟s expert testimony did not offend the Sixth
Amendment‟s confrontation right, but for a completely different reason: The
Maryland laboratory report on which Lambatos relied “lack[ed] the solemnity of
an affidavit or deposition” and was therefore not “testimonial.” (Williams, supra,
567 U.S. at p. ___ [132 S.Ct. at p. 2260] (conc. opn. of Thomas, J.).) A dissenting
opinion by Justice Kagan, and signed by Justices Scalia, Ginsburg, and
Sotomayor, disagreed with the reasoning of both the plurality and Justice Thomas,
and concluded that Lambatos‟s testimony violated the defendant‟s confrontation
right.
III. DISCUSSION
As mentioned earlier, laboratory director Joseph Muto of the Los Angeles
County Department of the Coroner testified that analysts in his laboratory had
conducted a number of tests on samples of murder victim McDavid‟s blood. (See
pt. I.C., ante.) The test results appeared in two laboratory reports by analysts who
did not testify at trial: One report was prepared in 2005, shortly after McDavid‟s
death; the other was prepared in 2006, after the arrest of defendant Golay and
codefendant Rutterschmidt. Based on these two laboratory reports (not introduced
into evidence), laboratory director Muto testified that the analysts had detected the
presence of alcohol and three sedating drugs in the victim‟s blood samples.
The Attorney General argues that the two laboratory reports lack sufficient
formality to be considered testimonial by the high court, because “[t]here is
nothing in the record . . . indicating that the toxicology reports . . . contained . . .
solemn or formal declarations or affirmations of accuracy.” Laboratory director
Muto‟s testimony about the test results described in the reports, the Attorney
General asserts, gave the jury “nothing more than raw data that was distinctly
nontestimonial.”
12

Furthermore, the Attorney General argues, even if the two laboratory
reports were testimonial, Golay had no right to confront and cross-examine the
preparers of the reports, because the defense was able to, and did, cross-examine
laboratory director Muto. The Attorney General notes that Muto “supervised the
work of each of the forensic analysts who contributed to the . . . reports,” and “was
familiar not only with the individual analysts and laboratory standards but also
with the specific testing itself,” as he had “personally conducted original analysis
in the same laboratory in other cases.” Thus, the Attorney General reasons, Muto
“was a constitutionally sufficient witness because he did not need to rely on any
testimonial statements” in the reports.
With regard to the 2005 laboratory report, the Attorney General makes two
additional arguments (not applicable to the 2006 laboratory report). First, the Attorney
General notes that when the 2005 report was prepared, the police did not suspect a
murder, and although they considered it likely that McDavid was the victim of a hit and
run, they had no suspects for that crime. Relying on the three different “primary
purpose” tests articulated by three different high court justices in Williams, the Attorney
General argues that the 2005 report was not testimonial because it was not produced for
the primary purpose of “accusing a targeted individual” (Williams, supra, 567 U.S. at
p. ___ [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.)), of “establish[ing] some fact with
the understanding that [it might] be used in a criminal prosecution” (id. at p. ___ [132
S.Ct. at p. 2261] (conc. opn. of Thomas, J.)), or of “providing evidence” (id. at p. ___
[132 S.Ct. at p. 2273] (dis. opn. of Kagan, J.)). Second, the Attorney General contends
that because laboratory director Muto “reviewed and signed” the 2005 laboratory report,
he had “firsthand knowledge about the testing process,” and therefore his testimony about
the report‟s test results did not entitle defendant to cross-examine the testing analysts.
Defendant Golay contends that under Williams, supra, 132 S.Ct. 2221, both
the 2005 and the 2006 laboratory reports are testimonial in nature. Focusing on
13

the reports‟ formality, Golay asserts that the reports were “solemnized because
they were signed by supervisors” and were “formal accusations,” and therefore
testimonial. Golay argues that even though Muto reviewed and signed the 2005
report and was the director of the laboratory at which both reports were prepared,
he was “not really an expert on the subject for which he was testifying.” Golay
notes that Muto “admitted he was not a pharmacologist . . . and . . . was „out of
[his] . . . area of expertise.‟ ” Thus, Golay reasons, Muto “essentially operated as a
conduit to relate to the jury critical evidence” contained in reports by nontestifying
laboratory analysts whom the defense could not cross-examine.
We need not decide, however, whether the trial court erred in allowing
laboratory director Muto‟s testimony, because any error did not prejudice Golay.
Violation of the Sixth Amendment‟s confrontation right requires reversal of the
judgment against a criminal defendant unless the prosecution can show “beyond a
reasonable doubt” that the error was harmless. (Chapman v. California (1967)
386 U.S. 18, 24; see also People v. Geier (2007) 41 Cal.4th 555, 608.) Here, that
standard is met, because the evidence of Golay‟s guilt was overwhelming.
The uncontradicted evidence showed that Golay and codefendant
Rutterschmidt, through fraud, took out 13 insurance policies on murder victim
McDavid; that before McDavid‟s death, Rutterschmidt and another elderly woman
(presumably Golay), bought a car and, to prevent being linked to the car,
registered it in the name of a woman whose driver‟s license had been stolen; that
this was the car later used to run over McDavid; that on the night of McDavid‟s
killing an elderly woman identifying herself as Golay telephoned to have a tow
truck take this very car from a location close to the scene of McDavid‟s killing to a
place near Golay‟s home; and that thereafter Golay collected $1,540,767.05 under
the insurance policies she had taken out on McDavid‟s life.
14

The evidence also showed that six years earlier, Golay and codefendant
Rutterschmidt had collected $589,124.93 under various policies insuring the life of
then 73-year-old Paul Vados, who, like murder victim McDavid, died from being
run over in an alley by a car.
In light of the overwhelming evidence against defendant Golay, exclusion
of laboratory director Muto‟s trial testimony in question would, beyond a
reasonable doubt, not have affected the outcome of Golay‟s trial. We therefore
agree with the Court of Appeal‟s affirmance of the judgment of conviction.2
DISPOSITION
The judgment of the Court of Appeal is affirmed.
KENNARD, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.

2
The Attorney General has asked us to take judicial notice of the
nontestifying analysts‟ laboratory reports. Defendant opposes the request.
Because, as explained above, any error in permitting laboratory director Muto‟s
testimony about the reports was harmless, the reports have no bearing on the
outcome here. We therefore deny the Attorney General‟s judicial notice request.
15



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rutterschmidt
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 176 Cal.App.4th 1047
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S176213
Date Filed: October 15, 2012
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: David S. Wesley

__________________________________________________________________________________

Counsel:

David H. Goodwin, under appointment by the Supreme Court, for Defendant and Appellant Olga
Rutterschmidt.

Roger Jon Diamond and Janyce Keiko Imata Blair, under appointments by the Supreme Court, for
Defendant and Appellant Helen L. Golay.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Donald E. DeNicola, Deputy State Solicitor General, Pamela C. Hamanaka and Lance E.
Winters, Assistant Attorneys General, Steven D. Matthews, Joseph P. Lee, Lawrence M. Daniels and David
E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

W. Scott Thorpe; and Albert C. Locher, Assistant District Attorney (Sacramento) for California District
Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

Dolores A. Carr, District Attorney (San Jose) and John Chase, Deputy District Attorney, for California
Association of Crime Laboratory Directors as Amicus Curiae on behalf of Plaintiff and Respondent.




Counsel who argued in Supreme Court (not intended for publication with opinion):

Roger Jon Diamond
2115 Main Street
Santa Monica, CA 90405
(310) 399-3259

David E. Madeo
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-4925


Petition for review after the Court of Appeal affirmed judgments of conviction of criminal offenses. The court limited review to the following issues: (1) Was defendant denied her right of confrontation under the Sixth Amendment when a supervising criminalist testified as to the result of drug tests and the report prepared by another criminalist? (2) How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314, affect this court's decision in People v. Geier (2007) 41 Cal.4th 555?

Opinion Information
Date:Docket Number:
Mon, 10/15/2012S176213

Opinion Authors
OpinionJustice Joyce L. Kennard

Jun 4, 2013
Annotated by Erika Wayne

This case is part of a trio of cases in front of the Supreme Court of California involving the federal Constitution’s right to confront adverse witnesses. The two accompanying cases are People v. Lopez and People v. Dungo. The media has popularized the facts of this case. For more information, see The Murder Mystique: Female Killers and Popular Culture at pages 85-102, Signed in Blood: The True Story of Two Women, A Sinister Plot and Cold Blooded Murder, and the article The Last Frontier: Myths & the Female Psychopathic Killer.

Facts:

Defendant, Helen Golay, and codefendant, Olga Rutterschmidt, were in their mid-70s when they were charged with murdering Paul Vados and Kenneth McDavid, by running over each of them with a car. Both Golay and Rutterschmidt collected life insurance policies issued in Vados’ and McDavid’s name. Some policies listed either Golay or Rutterschmidt as the sole beneficiary, while others listed them both. Golay received $1,540,767.05, and Rutterschmidt received $674,571.89.

A. Murder of Paul Vados

During 1997 to 1999, Golay and Rutterschmidt submitted at least six policies insuring Vados’ life. Golay was listed as Golay’s fiancée, and Rutterschmidt was listed as Vados’ cousin. However, Rutterschmidst and Vados were not related to each other, and there was no evidence of a relationship between Golay and Vados.

On November 8, 1999, Vados’ body was found lying in an alley. There were head and chest injuries, which implied that Vados had been run over by a car. However, there were no glass fragments or car parts at the crime scene. Additionally, Vados had no leg fractures, which ordinarily would have occurred when a person, who is standing or walking, is fatally struck by a car. Due to the type of the injuries, the grease marks on Vados’ clothes and the body’s location, the officer on duty concluded that Vados, while lying in the alley, was run over by a slow-moving car.

B. Murder of Kenneth McDavid

In September 2002, Golay leased and paid for an apartment for Kenneth McDavid, a homeless man living outside a church. During November 2002 to March 2003, Golay and Rutterschmidt submitted 17 policies insuring McDavid’s life. Various insurance companies issued thirteen policies. Similar to the insurance scheme regarding Vados, Golay was listed as McDavid’s fiancée, and Rutterschmidt was listed as McDavid’s cousin. Some policies listed either of them as the sole beneficiary, while others listed them both as beneficiaries.

In January 2004, Rutterschmidt and another elderly woman bought a used Mercury Sable station wagon from a used car dealership with a stolen driver’s license. On October 30, 2004, Rutterschmidt went to McDavid’s apartment with a hired, armed security guard and told the guard to stay in the apartment for a week. She told McDavid to vacate the apartment and the guard was instructed not to let anyone into the apartment.

On June 22, 2005, McDavid’s body was found lying in an alley. There were no skid marks, no pieces of glass and no other parts belonging to a car at the crime scene, which would have been anticipated if McDavid had been accidentally struck by a car. The officer on duty also saw a “possible tire imprint” on the front of McDavid’s jeans. Similar to Vados, there was grease on McDavid’s clothing and his legs were not fractured.

Around 11:55 p.m. on June 22, 2005, a cellphone registered to Golay’s daughter made a call to an emergency road service to tow a Mercury Sable to a location near Golay’s home. The woman gave her name as Golay.

Two businesses nearby the scene had video surveillance cameras. One camera showed a car driving through the alley that stopped close to the spot where McDavid’s body was later found. The video showed the driver turning off his or her headlights for approximately five minutes and backing up, before turning on the headlights and continuing to drive down the alley, before stopping about 75 feet beyond the place where McDavid’s body was discovered. The other camera’s video identified the car to be either a Mercury Sable station wagon or a Ford Taurus.

In May 2006, the police arrested Golay and Rutterschmidt. In Golay’s house, the police found Ambien (a sleeping pill), Vicodin (a pain killer), Venlafaxine (an antidepressant that causes drowsiness), and Temazepam (an anti-anxiety drug that causes drowsiness). The police also obtained Rutterschmidt’s Mercury Sable station wagon and found human blood, hair, and tissue samples. The tissue samples matched McDavid’s DNA profile, and the probability that another person would have the same DNA profile was one in 10 quadrillion.

C. Toxicology Analysis of McDavid’s Blood

The prosecution submitted that McDavid had been drugged before he was killed. As evidence, the prosecution presented the testimony of Joseph Muto, a toxicologist and a certified blood-alcohol analyst. Muto was also the laboratory director of the Los Angeles County Department of the Coroner.

Though Muto did not analyze McDavid’s blood samples, Muto’s testimony relied upon the two toxicology reports prepared by his analysts at his laboratory. Both toxicology reports were made after their respective tests (July 2005 and July 2006). Both reports showed that McDavid’s blood contained alcohol, and the generic forms of Ambien and Vicodin. The July 2006 report showed the additional presence of topiramate, an anticonvulsant that may cause sedation and dizziness. Muto explained that the reports were produced in their usual manner and were accurate. After testing (which are not done by Muto), his analysts would prepare a report reflecting the test results. The report is then peer reviewed, upon which the final report is sent to Muto for review for clerical errors or inaccuracies. The July 2005 and July 2006 reports followed every step of the procedure and the analyses were done in the normal course of the business and were accurate.

Golay claimed that Muto’s testimony violated her Sixth Amendment right to confront at trial and cross-examine the laboratory analysts who had tested the McDavid’s blood samples. The trial court overruled the objection.

Another prosecution witness testified that the combination of drugs found in McDavid’s body would cause a non-user to fall asleep or a regular user to become drowsy and confused.

Procedural History:

The jury found Golay and Rutterschmidt guilty of two counts of first-degree murder, two counts of conspiracy to commit murder, special circumstances of multiple murder and murder for financial gain. The trial court sentenced Golay and Rutterschmidt to life imprisonment without possibility of parole. The Court of Appeal affirmed the trial judgment. This article by the American Civil Liberties Union of Northern California provides a comprehensive overview on life imprisonment without parole.

Golay tried to argue that Muto’s testimony regarding the two toxicology reports prepared by analysts other than Muto violated her Sixth Amendment right to confront and cross-examine the laboratory analysts who performed the tests described in the reports. The Court of Appeal rejected Golay’s contention, and stated, even if there was a violation, the error was not prejudicial. The Supreme Court granted Golay’s petition for review. See the Bingham Young law review article, No Longer the Right to Remain Silent: Cross-Examining Forensic Analyst Testimony, for a broad discussion on the right to confront.

Issue:

To start, the Confrontation clause of the Sixth Amendment concerns a Defendant’s right to confront the witnesses against him or her in all criminal proceedings. The prosecution may not submit a witness’ testimonial statement if the witness does not appear at trial, unless the witness is unavailable and the defendant had a preceding chance for cross-examination. A Defendant’s Sixth Amendment right is violated, when the prosecution uses out-of-court statements as evidence against the Defendant without having the individuals whom made those statements testify at the Defendant’s criminal trial.

At issue is whether the prosecution violated Golay’s Sixth Amendment right by introducing Muto’s testimony regarding McDavid’s two toxicology reports made in July 2005 and July 2006. Muto did not do the testing nor did he write the reports; rather, his analysts did. Therefore, if a laboratory directory’s testimony that relies upon tests and reports prepared by others, does the Defendant’s Sixth Amendment right to confront at trial and cross-examine the laboratory analysts who conducted the tests and prepared the toxicology reports take effect?

Holding:

The Supreme Court of California held that Golays’s Sixth Amendment confrontation right was not violated, since there was overwhelming evidence against Golay. Therefore, the exclusion of Muto’s testimony would not have affected the outcome of Golay’s trial. The Supreme Court of California upheld the Court of Appeal’s judgment.

Analysis:

Unanimous (Kennard, J.):

Supreme Court’s Holdings Regarding the Right to Confront (6th Amendment)

The court noted four guiding U.S. Supreme Court opinions in its discussion regarding the federal constitutional right to confront adverse witnesses:

 

(1) In Crawford v. Washington, the U.S. Supreme Court held that admission of an out-of court statement against a Defendant does not violate his or her Sixth Amendment’s confrontation clause unless the statement is “testimonial.” The Court did not define “testimonial,” but mentioned several possible definitions, including extrajudicial statements contained in formalized testimonial materials (e.g. affidavits, depositions, prior testimonies, confessions, etc.).

(2) In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held that “certificates of analysis,” prepared by nontestifying laboratory analysts in a cocaine distribution and trafficking case, fell “within the core class of testimonial statements. The certificates of analysis stated that the contents found in plastic bags found in the Defendant’s car was cocaine. Therefore, the use of these laboratory certificates at trial violated the Defendant’s right to confront the analysts who prepared the certificates under Crawford. The Court explained that each of the certificates was: (1) a solemn declaration or affirmation made for the purpose of establishing or proving some fact; (2) functionally identical to live, in-court testimony; (3) made under circumstances which would lead an objective witness reasonably to believe that it would be available for use at a later trial; and (4), created to provide a prima facie evidence of the composition, quality, and the net weight of the substance found in the plastic bags located in the Defendant’s car. Melendez-Diaz v. Massachusetts at 310-11.

(3) In Bullcoming v. New Mexico, the U.S. Supreme Court held that the admission of a nontestifying analyst’s certificate of analysis in a driving while intoxicated case, violated the Defendants right to confront the nontestifying analyst as an adverse witness. The certificate of analysis was admitted at trial, but a colleague of the nontestifying laboratory analyst testified to the certificate’s accuracy regarding the Defendant’s high level of alcohol in the Defendant’s blood. The court distinguished Melendez Diaz, stating the statements in Melendez-Diaz were sworn before a notary public attesting to the truth of the reported tests results. In this case, the certificate was not a sworn declaration, but was formalized in a signed document. Bullcoming v. New Mexico at 2717. Together with the report that made reference to New Mexico court rules, this was more than adequate to qualify the nontestifying analyst as testimonial in nature and inadmissible.

(4) In Williams v. Illinois, the U.S. Supreme Court affirmed an Illinois Supreme Court decision allowing a forensic biologist to testify about DNA testing, that the Defendant’s DNA matched the DNA in the semen found on vaginal swabs. Nontestifying analysts performed the test results. The Court held that the forensic biologist’s testimony did not violate the Sixth Amendment’s confrontation right: (1) the testimony was admitted not for its truth but only for the limited purpose of explaining the basis of the forensic biologist’s independent conclusion; and (2), there was no confrontation right because the laboratory was not for the primary purpose of accusing a targeted individual. Williams v. Illinois at 228 and 2243. Thomas J. concurred with the majority stating that the tests lacked the solemnity of an affidavit or deposition and was therefore not testimonial. Williams v. Illinois at 2260.

 

Kennard J.’s Application of the Law

Muto testified that the analysts in his laboratory had conducted tests in July 2005 and July 2006 on McDavid’s blood. The test results appeared in two separate laboratory reports, which detected the presence of alcohol and drugs in McDavid’s blood samples. The Attorney General argues that the two laboratory reports are not testimonial; whereas, Golay argues that the two laboratory reports are testimonial.

Specifically, the Attorney General argued that the two laboratory reports lacked “solemn or formal declaration or affirmations of accuracy.” The Attorney General further asserts that the testimony gave the jury “nothing more than raw data that was distinctly nontestimonial.” Alternatively, even if the two laboratory reports were testimonial, the Attorney General argues that Muto “was a constitutionally sufficient witness because he did not need to rely on any testimonial statements” in the reports.

Relying on Williams v. Illinois, regarding the July 2005 report, the Attorney General argues that it was not testimonial because it was not produced for the primary purpose of accusing a targeted individual, of establishing some fact with the understanding that it might be used in a criminal prosecution or of producing evidence. Williams v. Illinois at 2243, 2261 and 2273. The Attorney General contends that since Muto reviewed and signed the July 2005 report, he had firsthand knowledge about the testing process and therefore his testimony about the report’s test results did not entitle Defendant to cross-examine the testing analysts.

Golay asserts that both the July 2005 and July 2006 reports are testimonial. They are solemnized because they are signed by supervisors and are formal accusations. Golay also contends that Muto “essentially operated as a conduit to relate to the jury critical evidence” contained in the reports. Therefore, the reports are testimonial.

The Supreme Court refused to decide whether the reports were tesimonials, because any error in allowing Muto’s testimonial did not prejudice Golay. Accordingly, the violation of the confrontation right requires reversal of the judgment against a criminal Defendant unless the prosecution can show “beyond a reasonable doubt” that the error was harmless. Chapman v. California at 608. The Supreme Court determined that the standard is met, because the evidence against Golay was tremendous. Golay and Rutterschmidt took out 13 insurance policies under McDavid’s name; bought a car under a stolen identity to prevent being linked to the car that would run over McDavid; on the night of McDavid’s death, a woman identifying herself as Golay called to tow the Mercury Sable from a location close to the crime scene to a location near Golay’s home; and proveeded to collect $1,540,767.05 from various insurance policies she had taken out under McDavid’s name.

Tags:

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Annotated by Elvina Chow