Court Says Phone Tap in Murder Case Illegal : Law: Suspicious husband recorded wife and her lover before he was killed. Their convictions are overturned.

By PHILIP HAGER

July 10, 1992 12 AM PT

TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — A husband’s secret tapes of his wife’s suspicious telephone conversations with her lover were improperly used to convict the two of murdering the husband, the state Supreme Court ruled Thursday.

In a rare defeat for prosecutors, the court ruled unanimously that federal law bars a family member from wiretapping the family telephone and that the tapes cannot be used as evidence in a criminal case.

The justices rejected the state’s two key contentions in the case: that the law permits domestic or “interspousal” wiretapping and that even if illegally made, the tapes were admissible because the government was an innocent recipient of evidence acquired by a citizen.

The court acknowledged that the tapes were the “linchpin” of the prosecution’s case but reluctantly concluded that the two lovers’ convictions must be reversed.

“We may question the wisdom of Congress in adopting such a broad-based suppression (of evidence) sanction,” Justice Armand Arabian wrote for the court. “. . . We may not, however, substitute our judgment for that of (Congress).”

Deputy State Atty. Gen. Morris Beatus said an appeal to the U.S. Supreme Court will be considered. If an appeal fails, prosecutors hope to retry the accused killers even without the taped evidence, said Assistant Santa Clara County Dist. Atty. Joyce Allegro.

“In an egregious case like this, it’s really a shame that the tapes cannot be used,” she said. “There was no government impropriety here.”

Mark L. Christiansen of Sacramento, lawyer for the male defendant in the case, praised the ruling, saying it will strengthen legal barriers against wiretapping by third parties.

“This is going to make home telephones much more secure,” he said. “Even in the best of families, one spouse may prefer that the other not overhear everything they say.”

Laurance S. Smith, attorney for the female defendant, called the ruling “a tremendous victory” for the right to privacy. “If this decision had gone the other way, anyone in a household could tape conversations by anyone else in the household,” he said. “And if there was anything juicy, it could be turned over to the local prosecutor.”

The case arose in 1986 after Joe Otto, a 61-year-old San Jose electrician, became suspicious of his wife, Brenda, a 39-year-old divorcee he had married a month before. Otto hid a voice-activated tape machine under a bed. It recorded all calls in or out of the couple’s home.

One tape picked up a whispered conversation between Brenda Otto and Marvin Mark, in which Mark said “everything was wrong” and “I tried every possible way,” but then added: “I got a better plan.”

An uneasy Joe Otto played the tape to his daughter and a neighbor who was a police officer. In response to his daughter’s concern, Otto began carrying a gun in his jacket pocket. He also gave his daughter a copy of his will in which he left her virtually all of his $300,000 estate and gave Brenda $1.

Three days later, another call was taped in which Brenda Otto and Mark spoke cryptically about the daughter being absent from the home that night. Later in the evening, Otto was bludgeoned to death. The body was discovered after Brenda Otto appeared screaming and naked at a neighbor’s home, claiming robbers had killed Otto and assaulted her.

Police, alerted to the tapes Joe Otto made, interrogated Brenda Otto, asking her whether she had discussed killing her husband on the phone. After a long pause, she replied: “No, I don’t think so.”

Mark told police he and Brenda Otto had been lovers but, when confronted with the tape, said he could not recall what the conversation was about. The two were tried for first-degree murder. They declined to testify and the jury, after hearing the tapes, found them guilty. They were sentenced to 25 years to life in prison.

In other action, the court:

* Ruled unanimously that a woman whose child was severely injured at birth by an allegedly negligent physician can seek damages for shock, grief and other emotional distress. But the woman cannot collect damages for distress from the loss of companionship in living with an impaired child, the court said. Damages for emotional distress and other non-economic harm are limited to $250,000 for negligence in medical malpractice cases.

* Agreed to hear a case that could determine the constitutionality of the state’s system for awarding punitive damages, which critics contend are often excessive.