Criminal Appeal

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.

Crawford Not Retroactive

As reported on SCOTUSblog and Sentencing Law & Policy, the Supreme Court unanimously held today that Crawford, the 2004 decision reforming the test for admission of testimonial statements of unavailable witnesses, does not apply retroactively to cases already final on direct review when Crawford was decided. The Court held that Crawford announced a new rule because it was not dictated by prior precedent. But the Court went on to hold that it was not a "watershed" rule and, thus, does not apply retroactively. View the opinion in Whorton v. Bockting, no. 05–-595, here (courtesy of SCOTUSblog).

Folks commenting at Sentencing Law & Policy already are suggesting this decision portends that the Court will similarly hold that Blakely is not retroactive. I tend to agree that the Court is unlikely to find any new rule to be a "watershed" rule and Whorton makes that clear. But, in contrast to Crawford, the Court is much less likely to hold that Blakely announced a new rule. While Crawford might not have been dictated by prior precedent, there's a very strong argument that Blakely was dictated by Apprendi. If the Court finds that Blakely did not announce a new rule, the Apprendi/Blakely rule would be applicable to all cases not yet final on direct review when Apprendi was decided in June of 2000.

Victim Statements In Response To Police Questions Spontaneous And Not Testimonial

The trial court here admitted the victim's statement to the police as spontaneous statements. Division Four of California's Second District Court of Appeal rejected the defendant's argument that the victim's statements were not spontaneous because they were the product of detailed police questioning. While one of the officers spoke to the victim for about five minutes and asked more questions than the other officers, the Court of Appeal found that the evidence supported the trial court’s finding that the victim’s answers were nonetheless spontaneous. According to the Court, the statement remained spontaneous because the victim was having difficulty providing more than one word answers, thus necessitating more extensive questioning. In addition, the Court noted that while the victim was being questioned, "there is little doubt that the pain she experienced and the concerns she had for her wellbeing precluded any motive to give a false account of what had occurred."

The Court then evaluated the admissibility of the statements under the Sixth Amendment's Confrontation Clause and concluded that the victim’s statements were neither testimonial nor the product of a formal police interrogation. First, the officers encountered the victim during an ongoing emergency. Second, the officers’ conversations with the victim were brief and initiated to enable police assistance to meet an ongoing emergency. Third, in the Court of Appeal's view, the statements were not taken under the calm circumstances of a formal interrogation.

The unanimous opinion was authored by Justice Steven C. Suzukawa.

People v. Pedroza, no. B189682 (Cal.Ct.App. (2nd Dist., Div. 4) filed 2/13/07)

Defendant Forfeited Right To Confront His Murder Victim, Even In The Absence Of Evidence Of Intent To Silence The Victim

The trial court in this case permitted police officers to testify as to six separate statements made by the victim to them concerning threats on her life made by the defendant. The trial court deemed the statements admissible under the spontaneous declaration exception to the hearsay rule. The victim was unavailable to testify at trial, as she had subsequently been killed by the defendant. In addition to lodging hearsay objections, the defendant argued that the statements were testimonial and therefore barred by Crawford v. Washington (2004) 541 U.S. 36.

Division Two of California's Fourth District Court of Appeal agreed that all six statements were testimonial. However, the Court pointed out that Crawford also recognized, as an example of what it called an exception to the Confrontation Clause, the rule of forfeiture by wrongdoing, which renders the clause unavailable to one who procures the victim’s absence at trial. Here, the defendant asserted that the trial court erred in concluding that by killing the victim, he forfeited his confrontation right concerning her statements, regardless of the lack of evidence that he killed her at least in part to silence her. He contended that under the circumstances, he could rely on his right to confront her unless he waived it, i.e., he intentionally relinquished it by intending to silence the victim when he killed her.

The appellate court here conducted a very lengthy review of the history of the forfeiture by wrongdoing rule and its application in numerous federal court opinons. Ultimately, it concluded that the rule of forfeiture by wrongdoing operates regardless of the defendant’s intent because it is based on the equitable principle prohibiting a defendant from benefiting from wrongdoing. Therefore, the Court held that admission of the victim's statements to the police did not violate the defendant's Sixth Amendment confrontation right.

As noted by Jono in an earlier post, the scope of the rule of forfeiture by wrongdoing was recently argued before the California Supreme Court. A ruling in that case is due by early March.

The unanimous decision was authored by Presiding Justice Manuel A. Ramirez.

People v. Costello, no. E037674 (Cal.Ct.App. (4th Dist., Div. 2) filed 1/12/07)

Laboratory Report Not Testimonial Under Crawford

The defendant in this case asserted a Confrontation Clause challenge to the admission of evidence that rocks seized from him contained methamphetamine. The evidence came in through the testimony of a supervising criminalist who reviewed the report of another laboratory employee, who did not testify. California's Fifth District Court of Appeal held that admission of this evidence did not violate the confrontation test set forth in Crawford v. Washington (2004) 541 U.S. 36 because: (1) the laboratory report was not testimonial; (2) it was not offered as a substitute for live testimony; and (3) the defendant had a full opportunity to cross-examine the supervising criminalist.

The unanimous decision was authored by Justice Rebecca A. Wiseman.

People v. Salinas, no. F049017 (Cal.Ct.App. (5th Dist.) filed 1/12/07)

Cal. Supremes to Hear Argument today on Forfeiture-by-Wrongdoing Exception to Crawford

The California Supreme Court (sitting in L.A.) will hear arguments in six cases today. On the calendar are three criminal cases, including People v. Giles, no. S129852, in which the Court will decide whether a forfeiture-by-wrongdoing exception applies to confrontation clause claims, i.e. does a criminal defendant forfeit a confrontation clause objection to an unavailable declarant's out-of-court statement when the the declarant is unavailable due to the defendant's wrongful conduct. The Court will consider the more specific question of whether the exception applies when it is the very conduct for which the defendant is on trial that forms the basis for the forfeiture, i.e. the defendant is on trial for the murder of the declarant and it's the homicide that made the declarant unavailable. In Crawford itself and last term in Davis v. Washington, no. 05-5224 (June 19, 2006), SCOTUS made clear that such a forfeiture doctrine does apply, but the Court did not address the difficulties of litigating the forfeiture question when doing so requires the defendant to defend the criminal charges themselves.

The state is represented by Deputy Attorney General Russell A. Lehman; Marilyn G. Burkhardt represents Giles.

There are two other criminal cases on the calendar today:

• People v. Leon, S137137: (1) Does a defendant have a legitimate expectation of privacy in telephone conversations on a telephone procured under a false name and was used for criminal purposes? (2) Does Cal. Penal Code section 629.72 create a broader right to challenge the admission of communications intercepted by such a wiretap than that afforded by the Fourth Amendment? (3) What showing of necessity is required for issuance of a wiretap in conspiracy cases?
• People v. Navarro (Horacio), S132666: If evidence was insufficient to support attempted kidnapping during a carjacking, can Court of Appeal modify the judgment to reflect conviction of two lesser included offenses—attempted kidnapping and attempted carjacking—or only one such offense?

Crawford Follow-Up Cases Argued

For reports on yesterday's arguments in Davis v. Washington (911 call) and Hammon v. Indiana (crime-scene statement) oral arguments look to:

• Orin Kerr, who reports there were few clues no which way these cases will go, but ventures that "If I had to guess, I would guess that the government scores a relatively narrow win in Davis (the 911 case) but that the defense wins in Hammon (the personal visit case)."
  
• Linda Greenhouse of the NYT had a different  assessment, concluding that a majority of the justices seemed to view the 911 call identifying the defendant as "too powerful" to be admitted without cross-examination.
  
  
  

Two New (To Me, At Least) Crawford Resources.

• Crawford v. Washington: Reframing The Right To Confrontation: This is an outline prepared by Crawford's SCOTUS attorney, Jeffrey Fisher. The focus of the outline, as it currently is in the lower courts, is on the question of "what is testimonial?" But he also has sections on "unavailability" and "opportunity for cross-examination."

• The Confrontation Blog: This is the new blawg by University of Michigan Law Professor Richard D. Friedman. From Prof. Friedman's first post:  "Welcome to The Confrontation Blog. There have been so many developments related to Crawford v. Washington, 541 U.S. 36 (2004), and I am so intensely interested in the subject matter, that I have decided to start this blog in hopes of facilitating understanding and communication on the topic. I will make postings as often as I am able and as devlopments warrant. I will not attempt to go back through all of the important developments in the nine months since the Crawford decision, but as time allows I will add postings on some of them."

 

Posted by Jonathan Soglin at 06:14 AM in Confrontation Clause, Hearsay | Permalink | Comments (1) | TrackBack

September 21, 2004

Blakely & Crawford. There has been a flurry of Blakey and Crawford opinions in California this past week. See my case summaries here and here and here.

That would be six published decision since last Monday for which we can blame or thank Jeffrey Fisher.

Posted by Jonathan Soglin at 12:50 AM in Blakely/Apprendi, Confrontation Clause, Hearsay | Permalink | Comments (2) | TrackBack

August 27, 2004

Restriction of Cross of Government Witness Violated Sixth Amendment. U.S. v. Wilmore, no. 03-10297 (9th Cir., Aug. 25, 2004).

Relying on Crawford v. Washington, ___ U.S. ___ , 124 S. Ct. 1354 (2004), the court held that the defendant's right to cross-examine a government witness was violated where the witness testified on direct while invoking the Fifth Amendment as to questions regading her grand jury testimony, her grand jury testimony was admitted on direct, and the court restricted the defense cross-examination of her to questions about which she would not invoke the Fifth Amendment.

Panel: Lay (8th Cir.), Hawkins, Bybee

Posted by Jonathan Soglin at 06:36 AM in Confrontation Clause | Permalink | Comments (0) | TrackBack

July 24, 2004

Crawford Reversal for Admission of Statements to Law Enforcement By Victim of Assault (Cal.Evid.Code sec. 1370.) People v. Adams, no. C040891 (Cal.Ct.App. (3d Dist.) July 22, 2004).

Court of Appeal agreed with trial court's finding that the victim was unavailable to testify at trial, but held that her out-of-court statements to law enforcement were inadmissible because she had never been subject to cross-examination. As she was the only witness to contradict the defendant's version of the events (the defendant testified), the error was prejudicial.

Panel: Morrison (author), Blease, Raye

Posted by Jonathan Soglin at 06:22 AM in Confrontation Clause, Hearsay | Permalink | Comments (0) | TrackBack

July 17, 2004

Crawford Applied.

People v. Pirwani, no. H025395 (Cal.Ct.App. 6th Dist., June 21, 2004). Cal. Evid. Code section 1380, which creates a hearsay exception for statements made by elderly or dependent adults to law enforcement officials, is unconstitutional in the wake of Crawford v. Washington. The court of appeal also found that the trial court had erred in admitting a statement under the spontaneous declaration exception to the hearsay rule.

People v. Cage, no. E034242 (Cal.Ct.App. (4/2), July 15, 2004) (partial publ.): one of three statements of non-testifying unavailable witnesses was testimonial. Statement 1: statement made by victim to police officer at hospital prior to treatment was not testimonial because of the lack of formality of the questioning and because the officer "was still trying to determine whether a crime had been committed and, if so, by whom." Following Justice Scalia's approach in Crawford, the Court focused on whether the statement was made in a context which was the modern equivalent of a pretrial examination before a justice of the peace.

Statement 2: statement made to treating physician was not testimonial. Statement 3: statement "made during a classic station-house interview," which "featured structured police questioning and tape recording," was testimonial, but its admission was harmless error.


Posted by Jonathan Soglin at 11:36 AM in Confrontation Clause, Hearsay | Permalink | Comments (0) | TrackBack

When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial, that admission can be voluntary and intelligent even though the defendant was not told of, and did not expressly waive, the rights to remain silent and to confront adverse witnesses. People v. Mosby, no. S104862 (Cal.Supreme Court, July 8, 2004) (Author: Justice Kennard (unanimous)).

In the case before it, the court found that the totality of the circumstances showed that the defendant knowingly waived his rights to confront witnesses and to remain silent because, when he waived his right to a jury trial on the priors, he had just sat through a trial in which he did not testify and in which his counsel confronted witnesses on his behalf.

Posted by Jonathan Soglin at 07:25 AM in Confrontation Clause, Guilty Plea Procedures, Self-Incrimination | Permalink | Comments (0) | TrackBack

July 16, 2004

Confrontation Clause and Propensity Evidence Claims Rejected in Domestic Violence Appeal; But AG Wins Re-Sentencing. People v. Price, no. A101668 (Cal.Ct.App. 1/4, June 30, 2004).

(1) No confrontation clause (i.e. Crawford) violation for admission of statement of unavailable witness where defendant had opportunity to cross-examine witness at preliminary hearing. Note: Although, in the end, it was not essential to the decision, the AG flip-flopped during the course of this case with respect to whether the witness's statement to police officers was testimonial. In the end, the AG argued it was not testimonial. (2) No due process violation in admission of prior act of domestic violation for propensity purposes (Cal.Evid.Code sec. 1109); (3) Unlawful sentence required resentencing.

Posted by Jonathan Soglin at 07:33 AM in Confrontation Clause, Propensity Evidence | Permalink | Comments (0) | TrackBack

May 20, 2004

Review Grant: Unvailable Witnesses. The California Supreme Court has granted review of the Court of Appeal (2d Dist., Div. 7) opinion in People v. Seijas, COA no. B160209, S.Ct. no. S123790 (modified).

The Court of Appeal had vacated a second degree murder conviction on the ground that the trial court had erroneously found a witness unavailable and admitted his preliminary hearing testimony. The witness had asserted his 5th Amendment right against self-incrimination because of "his potential criminal liability for 'lying to the police' and the District Attorney’s refusal to grant him transactional or use immunity from this potential liability or from prosecution for the murder itself." The court of appeal found that the witness was not unavailable because "California does not recognize 'lying to the police' as a crime" and because the prosecutor had assured the witness he would not be prosecuted for lying or for the murder.

The Supreme Court's docket does not yet describe the precise question to be reviewed.

You can read my original post on Seija here.


Posted by Jonathan Soglin at 06:24 AM in Confrontation Clause, Hearsay, Review/Cert Grants, Self-Incrimination | Permalink | Comments (0) | TrackBack

May 03, 2004

Crawford Distinguished. People v. Cervantes, no. B150919 (Cal.Ct.App. (2d Dist., Div. 3) Apr. 29, 2004).

Reviewing and applying Crawford v. Washington, no. 02-9410---the Supreme Court's breakthrough confrontation clause case from earlier this term---the California Court of Appeal rejected the confrontation clause arguments of two co-defendants challenging the admission of statements made by the third co-defendant to his neighbor.

Because the court of appeal found the statement non-testimonial, the case was distinguishable from Crawford and the lack of an opportunity to cross-examine the declarant did not render the statement inadmissible.

Because the statement was non-testimonial its admission depended upon "whether the statement falls within a well-settled hearsay exception or bears sufficient indicia of trustworthiness," a determination the court reviews de novo. The court found the statement sufficiently trustworthy and further explained that because it was a statement against the declarant's interest it did not have to be redacted under Bruton.

Posted by Jonathan Soglin at 10:25 PM in Confrontation Clause, Hearsay | Permalink | Comments (0) | TrackBack

April 06, 2004

Confrontation Clause Trumps Attorney-Client Privilege.
Case: Murdoch v. Castro, no. 02-55650 (9th Cir., Apr. 5, 2004)
Proceeding: Appeal from denial of state prisoner's federal habeas corpus (2254) petition.

Holding: A witness's attorney-client privilege (as applied to a letter from the witness to his attorney) may have to yield to the defendant's right to cross-examination. Applying a balancing test, the court concluded that if the contents of the letter are as expected, the defendant should have been allowed to cross-examine the witness (a cooperating co-defendant) with the letter:

Murdoch has arguably met his burden: “[a] reasonable jury might have received a significantly different impression of [Dinardo’s] credibility had [Murdoch’s] counsel been permitted to pursue his proposed line of cross-examination.” 475 U.S. at 680. Other than Dinardo’s
predictable denial when arrested for his involvement in the crime, the privileged letter is the only evidence of prior (purportedly) inconsistent statements by Dinardo regarding Murdoch’s involvement in the robbery and murder. General impeachment for bias based on his plea bargain questioned Dinardo’s reliability and trustworthiness in a much different (and lesser) way than would actual statements inconsistent with what he was then saying on the stand. Thus, Murdoch’s ability to fully cross-examine Dinardo was severely limited by the privilege ruling.

Relief: Remand with instructions for district court to obtain and review letter, in camera, and determine whether there was a confrontation clause violation.

Authoring Judge: Stephen Trott

Posted by Jonathan Soglin at 10:29 AM in Confrontation Clause | Permalink | Comments (0) | TrackBack

March 17, 2004

Crawford Remand By Cal. Supreme Court in Case Involving Statement Against Penal Interest (A Change of Plea Form!). In the wake of last week's blockbuster confrontation clause decision in Crawford v. Washington and as noted on today's order list and the docket in People v. Nissen, no. S121831, the California Supreme Court took the unusual action of granting review of a decision at the request of a court of appeal justice and on its own motion. As requested by the court of appeal, the court granted review and transferred the case back to the court of appeal "with directions to vacate its opinion in order to permit the Court of Appeal to reconsider the cause in light of Crawford v. Washington (Mar. 8, 2004, No. 02-9410) 541 U.S. ___ [2004 WL 413301]." Although the defendant-appellant had a pending petition for review, the Supreme Court actually acted on a letter from Court of Appeal Justice Richard D. Huffman.

On appeal, Nissen had argued that "the court violated his Sixth Amendment right to confront witnesses by admitting evidence of codefendant Rashad Mann's change of plea." At trial, the co-defendant had been declared unavailable. Over objection, the co-defendant's change of plea form was admitted as a statement against penal interest. According to the opinion, "[i]n his change of plea form, he admitted that he 'aided and advised codefendant Nissen in an assault likely to produce great bodily injury by instigating and encouraging codefendant Nissen via telephone to take victim Franco's cell phone.'"

Read the original court of appeal (4th Dist., Div. 1) opinion here. (Lexisone free registration required.) The main opinion was written by Justice Gilbert Nares. Justice Cynthia Aaron concurred separately, finding that the admission of the co-defendant's plea violated the confontation clause. Although, she did conclude the error was harmless.


Posted by Jonathan Soglin at 10:11 PM in Confrontation Clause | Permalink | Comments (0) | TrackBack

March 08, 2004

Testimonial Hearsay Inadmissible Unless Witness is Unavailable and There Was a Prior Opportunity for Cross-Examination. In a significant criminal case decided today, the U.S. Supreme Court overruled its 1980 decision in Ohio v. Roberts, 448 U.S. 56 (1980). In a majority opinion authored by Justice Scalia in Crawford v. Washington, no. 02–9410, the court overruled Roberts, which had held that a testimonial statement was admissible if it had adequate indicia of realiability, i.e. it fell within a firmly-rooted hearsay exception or bore particularized guarantees of trustworthiness. Finding no historical or textual support for such an exception to the confrontation clause, the majority concluded that the confrontation clause requires an opportunity for cross-examination:

To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

So, what qualifies as "testimonial"? We get a partial answer: "We leave for another day any effort to spell out a comprehensive definition of 'testimonial.' [Fn.] Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."

Chief Justice Rehnquist (joined by Justice O'Connor) dissented from the overruling of Roberts, but concurred in the result.

The case has generated analysis by SCOTUSblog, the New York Times, TalkLeft,

Posted by Jonathan Soglin at 11:59 PM in Confrontation Clause | Permalink | Comments (0) | TrackBack

February 25, 2004

Cal.Ct.App. (2d Dist., Div. 7): Murder Conviction Reversed for Error in Finding Witness Unavailable. In People v. Seijas, no. B160209, the California Court of Appeal (2d Dist., Div. 7) yesterday (Feb. 24) vacated a second degree murder conviction on the ground that the trial court had erroneously found a witness unvailable and admitted his preliminary hearing testimony. The witness initially told the police he saw nothing, but then admitted seeing the defendant shoot the victm. At trial, he refused to testify, asserting his 5th Amendment right against self-incrimination. "The grounds for invoking the privilege were his potential criminal liability for 'lying to the police' and the District Attorney’s refusal to grant him transactional or use immunity from this potential liability or from prosecution for the murder itself." The court of appeal found that the witness was not unavailble because "California does not recognize 'lying to the police' as a crime" and because the prosecutor had assured the witness he would not be prosecuted for lying or for the murder. The court found this error to have violated the Sixth Amendment right to confront witnesses and, applying the Chapman harmless-beyond-a-reasonable-doubt prejudice standard, reversed. The prejudice discussion has an interesting and subtle discussion as to why the cross-examination at the preliminary hearing did not do the job:

Only fictional attorneys defeat a prosecution at the preliminary hearing stage. Real defense attorneys know cross-examination which might lead to an acquittal at trial where the standard is guilt beyond a reasonable doubt will rarely lead to the dismissal of an information at the preliminary hearing where the standard is merely probable cause to believe the defendant committed the crime. As the late Justice Mosk observed, crossexamination at the preliminary hearing stage is more often used to discover what the witness knows about the crime and to attempt to tie the witness down to a particular version of the facts.[Fn. omitted.] Furthermore, as Justice Mosk also observed, even if given the opportunity the defense is generally unwilling “to fire all its guns at this early stage of the proceedings.” [Fn. omitted.] Additionally, in many cases defense counsel preparing for a preliminary hearing has not even had time to conduct the sort of investigation necessary to pursue an in-depth cross examination of the prosecution’s principal witnesses. Hence the crossexamination is more a discovery tool than a canon.

Justice Earl Johnson wrote the unanimous opinion.

Posted by Jonathan Soglin at 05:18 AM in Confrontation Clause, Hearsay | Permalink | Comments (0) | TrackBack