Trial of Doctor in Attack on Aissa Wayne, Luby to Begin : Court: Thomas A. Gionis is accused of ordering the assault that injured his ex-wife, daughter of late actor John Wayne, and her boyfriend in Newport Beach.

When Dr. Thomas A. Gionis goes on trial this week accused of ordering the 1988 attack on his ex-wife, Aissa Wayne, and her former boyfriend, the dramatic backdrop for the jury will be the couple’s bitter custody battle over their 2-year-old daughter.

But the most controversial prosecution evidence could be a few sheets of paper--the kind almost everyone gets in the mail each month from his or her telephone company.

Telephone records, prosecutors believe, will show that Gionis was actively involved on Oct. 3, 1988, with three henchman who stalked late actor John Wayne’s daughter and her boyfriend, financier Richard W. Luby, at Luby’s Newport Beach estate. It was at 11:40 a.m. that day when two of them approached Wayne, now 34, and Luby, now 54, with guns in Luby’s garage. One smashed Wayne’s face into a concrete garage floor and cut Luby’s Achilles tendon.

Gionis, 37, a highly successful orthopedic surgeon from Pomona, has denied that he ordered the attack, although it was his private investigator, O. Daniel Gal, 34, of Century City, who hired the two thugs who carried it out.

Gionis’ attorneys say it was Gal who made the decision to have Wayne beaten, without the doctor’s knowledge. And at the Gionis trial, they say, they will show that Gal had his own motive for doing it.

At a pretrial hearing last week, Gionis attorney John D. Barnett called Gal “a knothead who doesn’t have all his oars in the water.”

“It was a bonehead idea,” Barnett said, “to go in there in broad daylight, the middle of the day, and for what purpose? . . . They didn’t tell the doctor. He’s not involved.”

But in an earlier hearing, Deputy Dist. Atty. Christopher J. Evans told the court that Gionis had a good motive for wanting his ex-wife hurt--he was losing the custody battle pending in court.

“There is tons of motive,” Evans said then. “He (Gionis) went through a rather protracted and bitter divorce that cost him a million dollars (primarily attorney fees). I think that could make somebody angry.”

Pretrial motions in the Gionis trial are expected to conclude before Superior Court Judge Theodore E. Millard today. The trial is expected to begin with jury selection this afternoon.

One of the men accused of being an attacker, Jeffrey K. Bouey, now 37, of Simi Valley, whose case is expected to be plea-bargained, has already testified against Gionis at a preliminary hearing. Gal, who is still facing trial, has also agreed to cooperate with authorities, though his role at the Gionis trial is still unknown. Jerrel L. Hintergardt, now 39, of Burbank, who led the actual attack, is now serving an eight-year prison sentence for his role.

Bouey has testified that the attack came immediately after a telephone conversation Gal said he had just had with Gionis.

Wayne and Gionis were still facing a custody hearing at the time, and court records show that he had hired Gal to conduct surveillance on Wayne. She and Luby had left his house that morning to spend about an hour at a nearby health club. Unknown to them, Hintergardt and Bouey were following them. They returned to Luby’s walled residence about 11:40 a.m. When Luby used a remote control to open his gate in order to drive his car into the garage, Hintergardt and Bouey slipped onto the grounds on foot.

The two drew guns on the couple, then Hintergardt slugged Luby in the face when the victim laughed that it must all be a joke.

The two victims and Bouey say it was Hintergardt who cut Luby’s tendon and smashed Wayne’s face into the concrete. Hintergardt, at his trial, admitted everything but smashing Wayne’s face.

A police officer has described how Wayne was so frightened afterwards that when the police approached her at a neighbor’s, she was cowering behind a tree and was covered with blood.

Key to prosecutors is what took place shortly before the attack. Sitting in his car just a short distance away from the Luby estate was the investigator, Gal. He was on his car telephone. Bouey has testified that Gal seemed agitated and used his hands expressively as he talked.

When Gal hung up, Bouey said, he told them: “That was the client. He’s angry. He wants this done now because he’s got a court case coming up soon.”

Hintergardt claims that it was Luby--not Wayne--who was the target, and the client was a drug dealer. But Hintergardt’s credibility is so suspect that the defense is not expected to use him.

Bouey estimated that the call came at 10 a.m. Telephone records show that at 10:03 a.m. that day Gal made a short telephone call from his car phone--to Gionis’ residence. There is another call at 10:05 a.m.--from Gal’s car phone to Gionis’ car phone. There is another call at 10:07 a.m.--from Gal’s car phone to Gionis’ residence again. All of them were short. Prosecutors say it could have been with any of these calls that Gionis gave the order.

There are other telephone records from that day in the case. Early morning telephone calls from Gal to Hintergardt, from Hintergardt to Bouey, and from Gionis’ car phone to Gal’s car phone. There were telephone calls after the attack--from Gal’s car phone to Gionis’ car phone and to Gionis’ residence, just seven minutes after the attack occurred.

At one pretrial hearing, prosecutor Evans told the court: “Every one of those telephone calls has a strategic significance to what happened that day.”

But Gionis’ attorney Barnett said outside the courtroom last week that “the prosecutors want a jury to believe those telephone records show there was conversation between Gal and Dr. Gionis that day. We’re confident those records aren’t going to prove that.”

Some authorities speculate that the defense will try to show that others at Gionis’ residence answered the telephone, not the doctor.

But the prosecutors believe that Gal’s statement to the others--”that was the client”--will tie the calls in to the attack. Bouey also testified at Gionis’ preliminary hearing that Gal told them from the beginning that it was a doctor involved in a custody suit with his ex-wife who wanted them “to put a scare into her.”

Gal testified at the later custody hearing that he had been hired by the doctor to see if Wayne was actually spending time with the child, who was temporarily in her custody.

Court documents show that Gionis had paid Gal $27,000 for five months of services. But in August and September of 1988, Gal was paid an additional $40,000. Prosecutors contend that the payments ballooned because the doctor wanted Gal to do more than just spy on his wife. The last payment was made the day before Bouey claims Hintergardt called him about “doing a job.”

Bouey was later paid $2,000, Hintergardt got $3,500. Both were paid by Gal in cash.

Gionis eventually won the custody hearing, but Wayne has received primary custody since Gionis’ arrest in the Newport Beach attack. In court papers for bail hearings, Gionis has complained that the case has all but destroyed his once lucrative practice, though he is still seeing patients.

Gionis lawyers have indicated that the key to his defense lies with Gal’s credibility before the jury. Prosecutors did not use Gal to testify at Hintergardt’s trial. They have not yet said whether Gal will testify before Gionis’ jury. But even if he doesn’t, Gionis attorney William J. Kopeny told the court at a hearing last week, Gal’s credibility is critical because of his statement to Bouey that it was the doctor on the phone that day.