Friday, September 17, 2004
Stricken Preliminary Hearing Testimony Is Admissible To Rebut Other Hearsay Evidence, C.A. Rules
By a MetNews Staff Writer
A wife’s partial preliminary hearing testimony about a domestic violence incident should have been admitted at her husband’s trial, even though it was stricken after she asserted her privilege against self-incrimination, this district’s Court of Appeal ruled yesterday.
Justice Steven Perren, writing for Div. Six, rejected the contention of prosecutors that once the testimony was stricken, it in essence no longer existed and could not be used to contradict statements Miguel Angel Corella Jr.’s wife made immediately after the incident that led to his trial on a charge of inflicting corporal injury on a spouse. Perren, whose opinion was joined by Justice Paul Coffee and Presiding Justice Arthur Gilbert, said Santa Barbara Superior Court Judge Rick Brown erred in excluding the evidence.
Corella’s wife called 911, telling an operator her husband had hit her, and repeated the allegation to a police officer and medical personnel who responded to the report. But at the preliminary hearing, she instead claimed she had fallen while playing with her son near a Jacuzzi.
The statements she made at the time of the fall, she said, were untrue and made out of fear her husband was going to leave her.
Since that could have been a self-incriminating admission of falsely reporting a crime, the jurist conducting the preliminary hearing interrupted her testimony and appointed counsel to represent her. When the hearing resumed the next day, she followed the appointed lawyer’s advice and invoked the Fifth Amendment.
The partial testimony was stricken, and Corella’s wife did not testify at trial. He was convicted based on the statements his wife had made to police and the 911 call, which was played for the jury.
Brown abused his discretion by rejecting Corella’s bid to introduce the stricken testimony, Perren explained, reasoning that it was made admissible by Evidence Code Sec. 1202. That section provides that “[e]vidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct.”
Once the earlier hearsay statements were admitted, the partial testimony became admissible under that section, Perren said.
Though striking the testimony may have made it no longer “testimony,” it did not make it inadmissible for all purposes, as prosecutors contended, Perren declared.
“Striking Mrs. Corella’s testimony does not mean the words were not spoken,” the justice wrote. “They were. Corella had the right to present the words to the jury for its consideration of the truth of Mrs. Corella’s earlier words. Mrs. Corella gave two versions of the events. By not admitting her preliminary hearing statement, the jury heard only the version proffered by the prosecution.”
The error was prejudicial and required reversal of Corella’s conviction, Perren said.
But the justice rejected Corella’s contention that the 911 tape and his wife’s statements to the responding officer should have been excluded. Both came within Sec. 1240’s hearsay exception for spontaneous statements, and neither was made inadmissible by the U.S. Supreme Court’s ruling this year in +Crawford v. Washington,+ 124 S.Ct. 1354, he said.
In Crawford, the high court ruled that the admission of “testimonial” statements by an unavailable witness violates a defendant’s Sixth Amendment right to confrontation.
Though he noted that the high court in Crawford “chooses not to define” the circumstance under which statements elicited from a witness by police are testimonial, Perren said the analogy the justices drew to official pretrial examinations of suspects and witnesses by English justices of the peace before England had a professional police force suggested that “under Crawford, a police interrogation requires a relatively formal investigation where a trial is contemplated.” He pointed out that the statement considered in Crawford was recorded, and the Supreme Court concluded it was “knowingly given in response to structured police questioning.”
“[I]t is difficult to identify any circumstances under which a section 1240 spontaneous statement would be ‘testimonial.’ The rationale of the spontaneous statement exception to the hearsay rule is that the utterance must be made without reflection or deliberation due to the stress of excitement—.Mrs. Corella’s statements were ultimately used in a criminal prosecution, but statements made without reflection or deliberation are not made in contemplation of their ‘testimonial’ use in a future trial.”
The case is People v. Corella, 04 S.O.S. 5060.
Copyright 2004, Metropolitan News Company