Your Honor, since we are the proponent of the testimony of Lori Menzione, I would suggest that we would have the burden of justifying her admission.
Your Honor, Lori Menzione, on June the 12th, 1994, was an employee of Thomas Cook Travel Agency, which is now American Express Travel Agency. Sometime that morning she received a call from a Hertz representative, whom she knows from having had prior dealings, and was informed that there is a Mr. Simpson on the line that has a death request and needs to make an emergency change in his reservations. Subsequently there was another party put on the phone and then Mr. Simpson. We believe that was through a conference call that Mr. Simpson had made with either Cathy Randa or Skip Taft who had called Hertz to set up this conversation. And during the course of the subsequent conversation with Miss Menzione Mr. Simpson was attempting--the name was Orenthal Simpson. He was attempting to make new arrangements for the return flight to Los Angeles, having just been informed of the deaths of his former wife and another person. Miss Menzione, I can tell you as an Officer of the Court, would testify that during the course of her conversation with Mr. Simpson she heard a crash like sound in the background and Mr. Simpson said, "Hold on, hold on, hold on." She then heard a sound that she distinctly thought was the sound of water running. She will testify, your Honor, that the crash like sound that she heard was similar to a sound of someone wiping clean a table or something nearby and then things scattering, and that is the motion that she was using when she was trying to describe the nature of the sound that she heard. I spoke with her about it yesterday. She will say that after hearing the, "Hold on," she then heard water running and Mr. Simpson then returned to the phone and said, "I cut myself and I'm bleeding." And then there were further conversations that were made about trying to make arrangements about the death of his wife. There were conversations about his having two kids; one was nine, one was almost six. They were all conversations concerning Mr. Simpson's efforts to make arrangements for his return flight to Los Angeles. There is one argument that the People have suggested that there is no verification or ability to corroborate the fact that the Orenthal Simpson who Miss Menzione was speaking with was in fact Mr. OJ Simpson. I don't think that there is a great deal of stock in that particular argument, so I would like to focus my comments on the admissibility of that statement and why I feel that it is admissible. Certainly, your Honor, the conversation and the testimony about what she heard on the phone, that she heard a crash like sound over the phone, that she heard running of water, that Mr. Simpson had said, "Hold on, hold on," certainly that the crash like sound and the water running were percipient sounds that are admissible, irrespective of whatever word or conversations she may have had with the accused, so there is a threshold relevance clearly. There is a threshold basis to offer the admissibility of her testimony, and it becomes more relevant, your Honor, when the Court appreciates the context of her testimony with other facts that have already been before the jury and other facts still to come. As an Officer of the Court, your Honor, certainly the Court is aware that Kato Kaelin, Allan Park, Wayne Stanfield, Mike Norris, Mike Gladden, have all testified that they saw Mr. Simpson before--before and during the course of his Chicago flight and they noticed no cuts, no bruises, no bandages, no evidence of blood on his hands. I'm sure there will be the argument, well, they didn't look, but that goes to the weight rather than to the admissibility of the testimony.
As an Officer of the Court I will tell you that there will be other witnesses who will testify today. Howard Bingham, who was also on the flight and had a conversation with Mr. Simpson right next to his seat, Steve Valerie who was seated in first class across the aisle from Mr. Simpson and had occasion to observe him throughout the entire flight, and James Merrill who was the Hertz employee who picked up Mr. Simpson at the gate who traveled with him to the baggage claim area who will testify that he sat with him in the baggage claim area for fifteen or twenty minutes waiting for the bags to come, watching a relaxed but tired OJ Simpson greet some fans and bystanders, give autographs, shake hands and then driving Mr. Simpson from the airport to his hotel, helping him with his baggage, and that there was no cuts, no bruises, no bleeding on his hands as of that point. And now we have Mr. Simpson walking into the hotel and there has not been one witness who has perceived him that evening who noticed any cuts or bruises on his hands.
Counsel, I appreciate the relevance. I don't think you need to tell me more about that.
I'm trying to corroborate, your Honor, why this evidence has indications of trustworthiness separate from the words that were spoken, which is part of my obligation under evidence code section 1252. Then we have, your Honor, he goes inside his hotel, and Dave Kilduff, who is a vice-president and regional manager of Hertz, sees Mr. Simpson outside the hotel, he is distressed. Mr. Kilduff is dropping off Hertz employees, and basically Mr. Simpson takes his car and Kilduff then drives Mr. Simpson to the airport. Kilduff will testify that as he was pulling up Mr. Simpson was distressed, he was crying, he had his hands up to his face and there was a bandage, there was bleeding and it was profuse. We then will have testimony--
We then have testimony of Mark Partridge who will confirm that there was a bandage on the middle finger of his left hand. Your Honor, I suggest to you there is independent corroboration that the statements that Mr. Simpson made, "I'm bleeding and I cut myself," are independently trustworthy. And your Honor, under evidence code section 1250, these statements go to the physical sensation of the declarant and there is a specific clause that says physical sensation includes the bodily health. The People have conceded that if Mr. Simpson were to have said, "I'm hurt and I cut myself" that would have been admissible. I argue the statement, "I'm bleeding and I cut myself" is also admissible and it is a distinction without difference. A statement of his physical bodily health is that I'm bleeding and I cut myself. A statement of physical sensation is that "I'm hurt and I cut myself." For all reasons of fairness and probative value and with the other corroboration that will be present, I suggest to the Court that those statements are an admissible exception to the hearsay rule and should be admitted.
Good morning, your Honor. Your Honor, I spoke with Ms. Menzione as well on Monday morning when she was, I believe, still in Chicago. The conversation that she had she made typed notes with regard to and those are appended to my brief, and it shows the conversation in some detail as she recalled it within a few days after the conversation itself, so that is certainly the most trustworthy representation of what the conversation was. In any event, she was transferred a call where some caller, some person presumably from Hertz, I believe, said that they had a Mr. Simpson on the line who needed help because of a death notification, needed help with reservations. That by itself of course is irrelevant and hearsay. She proceeded to talk to Mr. Simpson and had trouble finding his reservation within the computer system that she was using. So they had rather a lengthy time on the phone. During that time he sounded like he was moving around the room. At one point he said, "Hold on," put the phone down and she heard what sounded to her like a phone falling, a crashing noise. At any rate, he did, after a pause, come back on the phone and she said, "Are you all right?" And he said--and what she described back then--in a somber tone of voice, "Yes, I've cut myself and I'm bleeding." Something about "I was just notified that my wife was killed." And she said, "I'm sorry, was she ill?" And he said, "No, she was killed," something like that. Now, the problem with this is a very elementary one to begin with and that is that there was no foundation that that was Mr. Simpson who made the call. We can talk about what is reported in the press and we can try this case based upon what people to know based upon various press reports or we can resume our trial of this case as we are doing in a court of law and go by the rules of evidence. The rules of evidence require the quite elementary foundation that there be authentication of the declarants of the person making the statement, who in this case is a caller over the telephone. Miss Menzione told me on Monday that she had never spoken to OJ Simpson before that occasion. She didn't even realize until the middle of the call that she had presumably Mr. Simpson on the line when she finally put together the Orenthal with the OJ it wasn't until halfway through the call that she even thought that is who it might be. We have him saying that is who he was, but she has never spoken to him before then. She has never spoken to him since then. And as she told me Monday, she did not recognize his voice during that conversation, still does not recognize it, and still cannot swear from personal knowledge that that was his voice on the phone. So while Mr. Douglas breezes over this problem, I believe he does so because there is no answer from the Defense to this problem that they have presented. This is a basic and elementary foundational problem when you have a hearsay declaration made over the telephone. I will address only briefly the excited utterance exception, since Mr. Douglas has chosen not to rely on it. I did include it in my brief. It is clearly not an excited utterance because the--as the Court ruled earlier with regard to Denise Brown's statement when she learned of Nicole's death, that, "Oh, my God, he did it" or something like that, because she did not witness the murders themselves, there was no traumatic event to which she was a percipient witness. And that where the spontaneous utterance exception applies, and cutting one's self is certainly under the case law not a traumatic event that is going to cause someone to be extremely upset and agitated so that they say something spontaneously that that is trustworthiness, so it fails to qualify under the hearsay exception for a spontaneous statement. And the only other one I was looking to see, well, could it possibly be an expression of a--assuming they could cross that first foundational hurdle, which they can't, could it possibly be an indication of physical suffering of some kind? And it is not. He states that he cut himself. He doesn't even say that it hurt. And I'm not conceding at all that it would come in necessarily if he had said it hurt him, but the point of that exception is to allow in civil actions testimony as to pain and suffering, because that is always going to be a hearsay type of declaration that comes out to prove what somebody is feeling, since you can't otherwise prove what they are feeling, so it is a sensation and not the visible result they could testify to, because there is no other way that that could come in under the law without making an exception for it. And the final thing I want to point out, Mr. Douglas stands up here and says as an Officer of the Court he can represent that all of these witnesses saw no cut on Mr. Simpson's hands repeatedly throughout the time that he was on the flight and so forth. I don't see how he can--how he can look you in the face, your Honor, and say that and say that those are trustworthy when he knows that his client's own taped statement that Mr. Simpson made after returning from Chicago he says--he acknowledges that he cut himself in Los Angeles. He didn't remember how, but he remembered cutting himself, that he had cut himself, that he was bleeding. He said he was running around, didn't know how he did it. He had no explanation for how he cut himself, but he did acknowledge that he cut himself. And in fact when he was asked about Chicago, he said, "I think it was a cut--that I reopened the cut that I made in Los Angeles that I reopened." So how Mr. Douglas can get up here and say with all ethical presumption, as an Officer of the Court, that he believes that statement is trustworthy when he knows that his own client told the police that he had cut himself in Los Angeles, is galling, it is absolutely galling. So for that reason, because words out of the Defendant's own mouth under a calm voluntary Mirandized situation which was tape-recorded, because he acknowledges having cut himself in Los Angeles, all of these other supposed indicia where someone is supposed to notice whether someone has a cut on their hand and because they don't that assumes to prove that they don't have a cut, all of those indicia is rendered absolutely untrustworthy because the Court has the Defendant's statement, his admission out of his own mouth. So the first and foremost and the easiest basis upon which the Court can rule, which is the one frankly I feel the Court is bound to rule, and that is that there is no foundation that this caller was indeed Mr. Simpson, as we know the law requires.
Mr. Douglas. I'm concerned about two things. One, the inability to identify the person to whom she was speaking, and I'm concerned about the offer of proof regarding the indicia of reliability point raised by Miss Lewis concerning statements that your client made.
First of all, your Honor, the witnesses will say that Mr. Simpson was not bleeding until after walking out of the hotel and then he was bleeding and that is the major cut that was on the top of Mr. Simpson's finger that witnesses will say they didn't see. Now, there were other cuts on other portions of his hand, but the major cut on the top of the middle finger of the left hand, witnesses will say was not bleeding and it was not seen until--Mr. Kilduff and Mr. Partridge were the first witnesses that would see and would testify about that cut and about the cut bleeding. In terms of the--the indication of who the person was on the phone, your Honor, certainly if the Court considers the totality of all of the other information in the case, as the Court must, there are sufficient indication of trustworthiness. One, we know it was a Hertz event. The witness will testify that she got a call from a woman she has dealt with in the past who is a Hertz employee.
Is there any record of this three-way phone conversation or any phone record contemporaneous with your client's hotel room?
There are records, your Honor, of Mr. Simpson having called Mr. Taft. There are records of several calls that Mr. Simpson made to Cathy Randa. There are records of calls that were made to Mr. Merrill who was the person that had taken him to the airport and there were arrangements that were made and there were other calls that were made, your Honor--
No, Mr. Douglas. What I'm interested in, do you have phone records that show this call to Thomas Cook, now American Express?
It wasn't a direct call from Mr. Simpson, your Honor. It was a call that was received from Hertz.
And it was a call, your Honor, that Miss Menzione will say that when the Hertz person first came on to the phone and talked about there being this Mr. Simpson and an emergency and a need for a change, there was then another person on the phone first.
I'm asking--all right. Do you have--virtually every hotel charges for phone calls these days.
Do you have a record showing a phone call from your client's room to the Hertz person?
Your Honor, that is not how it went. That is why I'm telling the Court, and if the Court will indulge me, there were calls that Mr. Simpson made to Cathy Randa. There has been testimony from Miss Simpson, Arnelle Simpson, that Miss Randa and Mr. Simpson had a practice of making three-way calls. When the Hertz call came through there was first another person on the phone and then Mr. Simpson came on the phone. Miss Menzione will say that at the conclusion of the call Mr. Simpson said, "Thank you, Cathy" to Miss Menzione, which suggests to me that certainly there was one indication or one occasion when there was a three-way call with Mr. Simpson having called Cathy Randa, she putting Simpson in touch with Hertz, Hertz then calling to Menzione and arrangements were made for travel. Clearly, your Honor, the arrangement for the reservation that was made was for the OJ Simpson who then had a ticket who then boarded that flight and who then sat in those seats. So I--
When they were asking about the nature of the emergency. There was discussion about my wife had just been killed. They had asked was it an accident? No, she had been killed. There was a discussion about his children. There was one 9 and there is one almost 6. these aspects of the conversation were reflected in the notes that Miss Menzione prepared that were attached with the motion. Who would have known, your Honor, other than OJ Simpson early on the morning of June the 13th, that there had been a death of an OJ Simpson that wasn't news in Chicago at that point, your Honor, that the caller had a child that was 9 and almost 6, that the caller wanted to make a particular flight from American Airlines? They tried to go to different airports, different airlines, but there was none that would get him into Los Angeles as quickly as the flight that was booked. I think, your Honor, there is sufficient indication that the caller was OJ Simpson, the name was Orenthal, the reservation was Orenthal. He was asked to spell the name Orenthal and during the course of the conversation she said, "Oh, you mean you are the movie guy?" "Yeah," and there was some reflection, during the course of the conversation, that she was speaking with the OJ Simpson.
So getting back to my question now, do you have a call from Cathy Randa to this Hertz person?
Mr. Douglas, Orenthal is clearly a unique and distinctive name. The facts and circumstances indicate probably so. Do you have something independent of this conversation that can establish to me that the likelihood is this is the person?
Your Honor, I do not have before me today Cathy Randa's phone records from June of `94. I do Mr. Simpson's telephone records from his hotel and I do have two calls that were made to Miss Randa's home before the first call that was made to Jim Merrill's cellular phone and he called Jim Merrill to pick him up to take him to the airport. I have three calls to Jim Merrill, but preceding those three calls were two calls to Cathy Randa.
All right. Do we have one of those computer travel agency printouts that gives us the time of the call and what arrangements were made?
Miss Menzione does not have that, no, your Honor. But your Honor, before the call was made to the driver to come pick me up and take me back to the airport, there were two calls made to Cathy Randa. Certainly, your Honor, that supplies the indication. At the end of the call he says, "Thank you, Cathy" to Miss Menzione. She will testify to that.
She is. Miss Menzione flew out here from Chicago. She is going back today and I would like to get her testimony on today.
Counsel, I think Miss Lewis' point is well taken at this point regarding foundation, but there is not much more that needs to be done, but I'm indicating to you I need something a little more than what is there, because relating a conversation with somebody that you've never talked to before, I think you need something more than what you've got here.
Even though there are independent confirming events during the course of the conversation that suggest only one person?
Counsel, no. I've ruled and I've found an inadequate foundation at this point.
KEY QUOTEShe will testify, your Honor, that the crash like sound that she heard was similar to a sound of someone wiping clean a table or something nearby and then things scattering.
So how Mr. Douglas can get up here and say with all ethical presumption, as an Officer of the Court, that he believes that statement is trustworthy when he knows that his own client told the police that he had cut himself in Los Angeles, is galling, it is absolutely galling.
Well, she knows how to change reservations.
Counsel, no. I've ruled and I've found an inadequate foundation at this point.
Who would have known, your Honor, other than OJ Simpson early on the morning of June the 13th, that there had been a death of an OJ Simpson that wasn't news in Chicago at that point, your Honor, that the caller had a child that was 9 and almost 6.