Patient, His Wife Testify for Gionis Defense : Trial: Theory that he gave the final assault order from limo or home phone is challenged.

One of Dr. Thomas A. Gionis’ patients and his wife testified Monday that they were with Gionis for two hours on Oct. 3, 1988, during the same time that a prosecution witness said Gionis was on the telephone giving the order for two gunmen to beat up his ex-wife, Aissa Wayne, and her boyfriend that day.

Gionis attorney John D. Barnett opened his case Monday morning and by midafternoon--without the doctor taking the witness stand--announced to the court that he was finished with witnesses and would rest following some housecleaning matters today.

Prosecutors contend that a pattern of telephone calls--dating from two weeks before the attack until the day after--shows that Gionis was behind the assault. But Monday’s testimony from the doctor’s patient and his wife challenges one prosecution theory that Gionis personally gave the final order on the assault from his limousine phone or the phone at his home in Pomona.

Gionis, 37, a highly successful orthopedic surgeon, is on trial for assault with a deadly weapon, conspiracy, burglary, and false imprisonment in the attack, which occurred in the garage of financier Roger W. Luby’s Newport Beach estate. Luby and Wayne, who are no longer together, had just returned from an exercise class when two gunmen assaulted them. Wayne’s face was smashed into the concrete floor several times, and Luby’s right Achilles’ tendon was cut, causing some permanent damage.

“You’re messing with the wrong people,” Wayne has testified one of the men told her while on top of her on the garage floor.

Prosecutors contend that Gionis was upset with his ex-wife, daughter of actor John Wayne, because of an ongoing, bitter custody battle over their daughter, who was then almost 2 years old.

Dan Gal, a private detective hired by Gionis to conduct surveillance on Wayne, has already acknowledged to authorities he hired the two gunmen.

One of the gunmen, Jeffrey K. Bouey, testified that about 10 a.m., just before Wayne and Luby left for the exercise class, Gal was on his car phone with someone. When Gal hung up, he told the gunmen: “That was the client. He’s upset. He wants this done now because his court case is coming up.”

Telephone records show that Gal made three telephone calls at that time: two to Gionis’ limousine and a third to Gionis’ house. Although Deputy Dist. Atty. Christopher J. Evans has carefully avoided telling jurors he could prove the two men talked, he has left a clear inference that Bouey was referring to Gionis when he said “the client.”

However, Dan and Doris Garvito testified Monday that Gionis was in his office in Upland from 9:30 a.m. to 11:30 a.m. that day, treating Dan Garvito for a serious back problem.

Dan Garvito testified that he noticed that the doctor’s limousine was not at the office. Other defense witnesses have placed the limousine that morning in Newport Beach, where Gionis family and friends were picking up Gionis’ daughter from Wayne’s home for visitation under a temporary custody arrangement.

Doris Garvito corroborated her husband’s testimony. She said she was sure of the date because she had to miss bowling that day to drive her husband to Gionis’ office. Both Garvitos said it was 11:30 a.m. when they left the doctor. Doris Garvito said she was sure because she checked her watch to see if they could beat the lunch crowd at a nearby restaurant.

Prosecutor Evans did not cross-examine either of the couple.

The Garvitos’ testimony helped the defense in another way as well. Prosecutors also have phone records showing a call from Gal’s car phone to the Gionis house at 11:47 a.m., just a few minutes after the assault. Presumably, prosecutors contend, Gal was calling Gionis to report what had happened. But if Gionis was with the Garvitos in his Upland office until 11:30 a.m., he was at least 30 minutes from his home and would not have been there in time for that call.

Gionis’ limo driver had told police that the doctor would have been home in time for the 11:47 a.m. call. However, on the witness stand, he said it was closer to noon when the doctor got home.

One other defense witness Monday was a close friend of the Gionis family, who testified she was in the limousine picking up Gionis’ daughter when a call from Gal did come in to the limo phone about 10 a.m. But she said Gal only asked to speak to Gionis’ mother.

Defense attorney Barnett said he did not have the doctor testify because, in light of the Garvitos’ testimony, “there was no need to.”

Prosecutors have other evidence besides Bouey’s testimony.

Finance records show that Gionis’ payments to Gal, who had been keeping surveillance on Wayne since April, dramatically increased after the time when Bouey claims the conspiracy was on to “scare” Wayne and “teach her a lesson.”

Also, records show an intense number of telephone calls not only from Gal to Gionis’ phones, but from Gionis’ phones to Gal’s car phone, just before the three calls on the day of the assault, and into the next day.

Evans has told jurors that it’s significant that when Newport Beach police stopped Gal near Wayne’s house the day after the assault, Gal immediately called Gionis’ house.

Gal, whose trial is pending, was not called as a prosecution witness, even though he has agreed to cooperate with authorities.

Bouey’s trial is pending, but he is expected to be allowed to plea-bargain. His partner, Jerrel Hintergardt, who committed the assaults on both Wayne and Luby, is now serving an eight-year prison sentence following his conviction in the case at a separate trial.