Tuesday, October 26, 2004
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C.A. Allows Admission of Murder Victim’s Hearsay Statement
By Kenneth Ofgang, Staff Writer/Appellate Courts
A recent U.S. Supreme Court decision making it harder for prosecutors to introduce hearsay statements into evidence does not preclude a ruling that a defendant has forfeited his objection by killing the victim, the Court of Appeal for this district ruled yesterday.
Div. Six affirmed Dwayne Giles’ 50-year-to-life sentence—including an enhancement under the “10-20-Life” law—for the murder of his ex-girlfriend, Brenda Avie. Giles claimed he shot Avie in self-defense after she confronted him outside his grandmother’s house and threatened to kill both him and his new girlfriend.
Giles testified he retrieved a gun from the house’s garage after Avie threatened him, and that she “charged” him and appeared to have something in her hand.
Prosecutors presented evidence that police had investigated a domestic violence incident involving Giles and Avie several weeks before the shooting. An officer repeated a conversation in which Avie said Giles had accused her of having an affair with a female friend and punched her, then held a knife about three feet away her and threatened to kill her if he found out she was having sex with someone else.
A defense objection to the hearsay testimony was overruled by Los Angeles Superior Court Judge Victoria Chavez on the basis of Evidence Code Sec. 1370, the hearsay exception for out-of-court statements describing the infliction or threat of physical injury upon the declarant.
Giles was subsequently convicted of first degree murder with personal use of a firearm. His court-appointed appellate lawyer, Marilyn Burkhardt of West Los Angeles, argued that the conviction should be overturned under Crawford v. Washington (2004) 124 S.Ct. 1354, a case decided while Giles’ appeal was pending which held that the admission of “testimonial” hearsay evidence violates the Confrontation Clause of the U.S. Constitution.
But Justice Paul Coffee, writing for the Court of Appeal, agreed with the prosecution lawyers, Deputy Attorneys General Lawrence M. Daniels and Russell A. Lehman, that even if Avie’s statement to the officer was testimonial, it was admissible under the doctrine of “forfeiture by wrongdoing.”
Coffee explained that the doctrine prevents a defendant from keeping out hearsay statements of a person whose unavailability to testify is a result of the defendant’s criminal conduct.
The justice wrote:
“Forfeiture is a logical extension of the equitable principle that no person should benefit from his own wrongful acts. A defendant whose intentional criminal act renders a witness unavailable for trial benefits from his crime if he can use the witness’s unavailability to exclude damaging hearsay statements by the witness that would otherwise be admissible. This is so whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable.”
Coffee rejected the argument that the doctrine usurps the function of the jury by requiring the judge to determine the very issue at the heart of the trial—whether the defendant murdered the victim.
“A court is not precluded from determining the preliminary facts necessary for an evidentiary ruling merely because they coincide with an ultimate issue in the case,” he wrote, citing the rule allowing admission of co-conspirators’ hearsay statements to prove the existence of a conspiracy.
Coffee elaborated that for a homicide victim’s hearsay statements to be admitted against his or her alleged killer under the doctrine, the statements must fall within a recognized hearsay exception, and the judge must find—based on evidence admitted at trial or presented at a hearing outside the presence of the jury—that there is clear and convincing proof of the defendant’s guilt.
The case is People v. Giles, B166397.
Copyright 2004, Metropolitan News Company