Metropolitan News-Enterprise


Tuesday, May 11, 2010


Page 3


C.A. Upholds Conviction of Man Who Strangled Wife With Necktie

Defendant’s Claim of Suicide Pact Did Not Require Special Instruction, Panel Says




A defendant’s claim that he strangled his victim as part of a suicide pact does not require a trial judge to instruct a jury on aiding and abetting suicide, the Court of Appeal for this district ruled yesterday.

In affirming David Lam’s conviction for second degree murder, Div. Eight held that such an instruction is not appropriate where it is undisputed that the defendant committed the act that caused death.

Los Angeles Superior Court Judge Robert Martinez sentenced Lam, who was charged with first degree murder but convicted of the lesser offense, to 15 years to life in state prison two years ago, after he strangled his wife with a necktie and buried her in the backyard of their Rowland Heights home. Lam, who was captured in Indonesia two years after the 2005 killing, testified that he and his wife were both depressed after he lost $20,000 while gambling and she learned that the money, which she had saved, was gone.

He claimed that after his wife said she wanted to kill herself, he told her he wanted to kill himself, so they agreed to strangle each other. When he regained consciousness, he said, Susan Lam was dead.

Contrary Testimony

Lam acknowledged that his testimony was contrary to what he told detectives, which was that he came home drunk, snuck up behind his wife the night he took the money, and killed her, out of shame. He said he planned to kill himself, but lost the nerve.

He explained to the jury that he lied to the police because he wanted to be sentenced to death.

Lam hired day laborers to dig holes in the backyard, where his wife’s body was found. The victim’s sister said Lam told her she had left him and gone to Chicago.

In imposing the sentence, according to a newspaper account, Martinez told the defendant:

“You are devoid of humanity, sir. It is the court’s belief you should spend the rest of your life in jail.”

The defense argued on appeal that the defendant’s trial attorney, Wayne Rozenberg, was ineffective because he failed to request an instruction on aiding and abetting suicide, a lesser offense.

But Justice Laurence Rubin, writing for the Court of Appeal, noted that an instruction on a lesser offense cannot be given over prosecution objection, and that even if the prosecutor consents, the court is not required to give an instruction not supported by substantial evidence.

In this case, the justice said, the prosecution had no reason to consent to such an instruction and the judge had no reason to give one.

A defendant is guilty of assisting suicide, rather than murder, Rubin explained, if he furnishes the means but does not participate in the actual killing.

Prior Case Differentiated

The jurist differentiated the case from In re Joseph G. (1983) 34 Cal.3d 429, in which the defendant and victim agreed to die by having the defendant drive his car over a cliff with the victim in the passenger seat. The defendant survived and was charged with murder, but the Supreme Court said he was guilty of nothing greater than assisting suicide because the defendant and the victim each assumed the same risk of death.

Rubin wrote:

“We find Joseph G. is distinguishable because appellant and his wife did not face an equal risk of death from a single instrumentality. The neckties they placed around their necks were separate instruments under their independent control. Appellant and Susan could to a greater or lesser degree choose to bear down on or release each other in their mutual strangulation, and that is apparently what happened. Thus appellant and Susan differed from the driver and passenger in Joseph G. whose plummet over the cliff in one car simultaneously hurled them beyond a point of no return to an equal risk of death.”

The justice went on to reject the argument that the judge should have instructed the jury on voluntary intoxication as possibly negating the intent required to commit second degree murder. The instructions that were given, to the effect that intoxication may negate the malice required for a first degree murder finding but has no bearing on whether the defendant committed second degree murder, were correct, Rubin said.

The case is People v. Lam, 10 S.O.S. 2469.


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