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Court Ruling Weighed for Its Effect in Belushi Case

September 23, 1985|ROBERT W. STEWART | Times Staff Writer

The way her attorneys see it, Cathy Evelyn Smith acted as nothing more sinister than John Belushi's "go-fer," an errand girl who obediently helped the portly comedian fulfill his unrelenting desire for chemical intoxication.

But the Los Angeles County district attorney's office holds Smith legally responsible for Belushi's seamy death in a Hollywood hotel on March 5, 1982.

For providing the film and television star with heroin and injecting him with that drug and cocaine in the hours before he died, Smith should be found guilty of second-degree murder, prosecutors believe. The crime carries a penalty of 15 years to life in state prison.

As testimony nears an end in Smith's preliminary hearing in Los Angeles Municipal Court, both sides say they are looking to a recent decision of the California Supreme Court to help determine which view of Smith's conduct is correct.

Decision in Case

The Supreme Court case, People vs. Edwards, was decided last July 25, more than a year after the Los Angeles County Grand Jury indicted Smith, 38, a former backup vocalist and companion to rock musicians, on charges of murder and felony drug furnishing in Belushi's death.

In the Edwards case, the high court appears to restrict the use of the legal theory of "second-degree felony murder" in certain kinds of drug overdose cases. The district attorney's office is using that theory in its prosecution of Smith.

In brief, the theory holds that anyone convicted of an inherently dangerous felony--in this case, furnishing narcotics--during which a death results can be found guilty of second-degree murder, even if that person did not intend to kill.

Howard L. Weitzman, one of Smith's two attorneys, said he believes that the "policy behind Edwards . . . is, if you are nothing but the conduit carrying out somebody else's wishes, and then you all share in the (drug) activity that the other person instigates and finances, then you shouldn't be responsible" for that person's death.

For that reason, Weitzman said, Smith is not guilty of murder and should not spend time in prison.

But Deputy Dist. Atty. Elden S. Fox, one of two prosecutors handling the Smith case, thinks the guidelines established in the Edwards case do not apply to the type of relationship shared by Smith and Belushi.

Fox and Deputy Dist. Atty. Michael J. Montagna contend that Smith was the sole source of Belushi's heroin and the only person who ever injected Belushi with drugs. The attorneys concede that Belushi had other sources of cocaine.

When Belushi's nude body was found in a bungalow at the Chateau Marmont Hotel, according to testimony at the preliminary hearing, the star of the original "Saturday Night Live" television show had at least 26 needle marks in his arms. None was older than five days.

Although the Los Angeles County coroner's office attributed Belushi's death to acute heroin and cocaine intoxication, the prosecutors have tried to show through expert medical testimony that heroin--not cocaine--was the drug that triggered Belushi's death.

In the recent Supreme Court case, a San Bernardino County jury used the felony murder doctrine to convict Dennis Edwards of felony drug furnishing and second-degree murder in the 1982 accidental heroin overdose of his girlfriend, Victoria Rogers.

Convictions Reduced

The Supreme Court reduced Edwards' convictions to involuntary manslaughter, for which the maximum penalty is four years in state prison, and unlawful heroin use, a misdemeanor.

The high court said the trial judge made a mistake by failing to tell jurors that, based on the facts presented in court, they had a choice. Because some evidence suggested that Edwards and his girlfriend were joint purchasers of the heroin, and that Edwards himself did not instigate the purchase, the jury should have been instructed that it could find Edwards guilty of the misdemeanor of aiding and abetting in unlawful heroin use, the Supreme Court said.

If the jury had returned that verdict, Edwards could not have been convicted of second-degree murder because Rogers' death would have occurred during the commission of a misdemeanor, not a felony.

Instead, the jury could have convicted Edwards of involuntary manslaughter, a crime defined in the California Penal Code as a killing that occurs during the commission of an unlawful act that does not amount to a felony.

Smith's attorneys believe that the circumstances surrounding Belushi's death parallel those in the Edwards case. At most, Weitzman and Scott S. Furstman said, Smith is guilty of the misdemeanor of aiding in the unlawful use of heroin. As a result, the attorneys said, their client should not stand trial on any charge more serious than involuntary manslaughter.

Judge's Ruling

That decision will be made by Los Angeles Municipal Judge James F. Nelson at the conclusion of the preliminary hearing, which resumes today.

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