Introduction Of Deceased Victim's Hearsay Statement Merits Reversal Of Manslaughter Conviction

California Evidence Code section 1370 creates an exception to the hearsay rule that permits the introduction of an unavailable witness' statement to a medical professional "made at or near the time of the infliction or threat of physical injury."

In this case, appellant was charged with second degree murder and spousal abuse. The prosecution's theory was that the victim died approximately nine months after the defendant twisted her neck. The victim had started seeing doctors within a week after her purported injury but specifically denied that she had suffered any trauma to her neck until almost two months after the incident in question. It was not until almost two months later that she told a doctor that the defendant had twisted her neck nearly two months earlier.

Pre-trial, the defense moved to exclude evidence of her statement to the doctor regarding the alleged neck-twisting as hearsay and violative of her Sixth Amendment confrontation rights under Crawford. The trial court admitted the statement under Evidence Code section 1370. The defendant was later convicted of voluntary manslaughter and spousal abuse.

A divided panel of Division One of the Fourth District Court of Appeal reversed the convictions. The two-justice majority concluded that "absent special circumstances, a statement about a physical injury made almost two months after its infliction does not satisfy the statutory time limit" found in Evidence Code section 1370 that the statement be made "at or near" the time of the event. The majority deemed the erroneous admission of this hearsay statement to be prejudicial because the victim may have had an incentive to fabricate the statement at issue. Because the majority decided the issue on hearsay grounds, it declined to address the constitutional Confrontation Clause issues.

In a concurring opinion, Justice Judith L. Haller disagreed with the majority's conclusion that the requirements of Evidence Code section 1370 were not met but agreed that reversal was required, finding the admission of the victim's statement to be in violation of the defendant's confrontation rights under Crawford.

Justice Haller eschewed the more rigid "at or near" test adopted by the majority and suggested that "the Legislature intended to provide a trial court discretion to admit a statement if it was made when the incident was fresh in the victim's mind and not so long after the incident to put into question the statement's trustworthiness and reliability." In her view, this test was satisfied on the facts of this case.

Nevertheless, noting that the Attorney General conceded the statement in question was "testimonial," Jutsice Haller, without any analysis, opined that admission of the statement violated the defendant's confrontation rights, thus meriting reversal.

The majority opinion was authored by Justice James A. McIntyre.

People v. Quitiquit, no. D050385 (Cal.Ct.App. (4th Dist., Div. 1) filed 9/12/07)

The People's petition for review and request for depublication in the California Supreme Court are pending as of today.