Metropolitan News-Enterprise


Wednesday, May 7, 2003


Page 1


‘Spontaneous’ Identification of Shooting Suspect Improperly Admitted, Court of Appeal Rules


By a MetNews Staff Writer


An admitted gang member was improperly convicted of attempted murder based upon testimony that the victim identified the defendant’s photograph a day or more after the shooting, the Third District Court of Appeal has ruled.

The justices Monday ordered a new trial for Michael Christopher Kons in the 2001 shooting of Mark Johnson. Jurors found Kons guilty of attempted murder and armed assault, and found that the crimes had caused great bodily injury and were committed for the benefit of a criminal street gang.

Prosecutors said Kons shot Johnson, whom he referred to only as “Mad Ball” and believed to be a member of the Crips gang, at close range in an alley following a brief argument, possibly over drugs.

A witness said she saw the shooting from her balcony in the apartment building next to the alley. She was unable to identify the defendant but said Kons was the same height as the shooter.

Sacramento Superior Court Judge Jack Sapunor found that Johnson was unavailable to testify at trial and allowed prosecutors to introduce hearsay evidence of two statements under Evidence Code Sec. 1370. The statute permits the hearsay statement of a purported victim of physical abuse to a police officer or medical personnel be admitted if certain requirements are met.

The first statement admitted was given to the first officer on the scene after the shooting. Johnson said that “Mad Ball” shot him, and that Mad Ball was a member of the Crips, but was otherwise uncooperative, the officer testified.

The second statement was given to a detective, who interviewed the victim at the hospital at least 33 hours after the shooting. In the interview, which was audiotaped, Johnson reiterated that Mad Ball was the shooter and picked Kons’ photo out of several shown to him by the officer.

Kons did not testify. His counsel argued that there were two other gang members known as Mad Ball and that one of them could have been the shooter. One of those men testified, admitting that he was known as Mad Ball and was a member of the Crips but denying that he had knew Johnson or had anything to do with the shooting.

Jurors found Kons guilty on all counts and enhancement allegations, and Sapunor sentenced him to 32 years, eight months to life in prison.

But Justice Ronald Robie, writing for the Court of Appeal, said the hospital interview was so untrustworthy as evidence that its admission, even if permissible under Sec. 1370, violated the defendant’s constitutional right to face his accuser.

The admission of hearsay evidence, Robie explained, does not violate the Confrontation Clause when a “firmly rooted” exception to the hearsay rule, such as the “spontaneous declarations” exception set forth in Evidence Code Sec. 1240, applies.

Johnson’s first statement to the police “may well qualify” as a spontaneous declaration, but the statement he gave at the hospital clearly does not, because it lacks “sufficient indicia of trustworthiness,” Robie said.

“The evidence failed to establish Johnson was particularly likely to be telling the truth when he made this statement,” the justice said. He cited the amount of time that had passed since the shooting, the lack of any evidence to rebut the presumption that hearsay evidence is unreliable, the victim’s lack of cooperation with police on the day of the shooting and failure to appear at trial while under subpoena, and the fact that he was riding his bicycle in an alley at 1 a.m., possibly with the intent to buy drugs.

The case is People v. Kons, 03 S.O.S. 2333.    


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