Metropolitan News-Enterprise


Tuesday, July 5, 2005


Page 1


Expert May Rely on ‘Testimonial’ Hearsay in Forming Opinion—C.A.

High Court Ruling on Confrontation Right Does Not Alter Traditional Rule on Expert Testimony, Panel Says


By KENNETH OFGANG, Staff Writer/Appellate Courts


A recent U.S. Supreme Court ruling that limits the use of “testimonial” hearsay in criminal cases does not affect the traditional rule that allows expert witnesses to factor other people’s statements and observations into their opinions, the Fourth District Court of Appeal has ruled.

In a June 10 opinion for Div. Two, certified Thursday for publication, Justice Thomas Hollenhorst rejected the contention that the admission of expert gang testimony at Melvin Thomas II’s trial in Riverside Superior Court violated Crawford v. Washington (2004) 541 U.S. 36.

Crawford held that the constitutional right to face one’s accusers is violated by the admission of hearsay statements that are elicited for the purpose of prosecution or otherwise testimonial in nature, unless defense counsel has had the opportunity to cross-examine the declarant.

Three-Strikes Law

Thomas was convicted of receiving stolen property and of committing a crime for the benefit of a criminal street gang, but was acquitted of vehicle theft. He was sentenced to 35 years to life in prison under the Three-Strikes Law.

An eyewitness testified that she was in back of her house when she heard a man yell, “F—— you, E.Y.C.” E.Y.C., an expert testified, is an acronym for Elsinore Young Classics, a local gang.

The witness, Judith Barrera, said she ran to the house and saw two men, whom she recognized. One of them was Joseph A. Johnson, who was getting out of a car, and the other was the defendant.

Barrera said she saw Johnson jump into a pickup parked in front of the house, while Thomas moved from the back seat of the car Johnson driving to the front. Knowing that the truck belonged to Brian Morrell—whom the gang expert testified was a member of an E.Y.C. rival—Barrera drove around the area until she saw the truck at a nearby convenience store, where she saw Johnson and Thomas and yelled at them.

The two left on foot, she said, while she called 911. Police later found the two lying in a field at the back of the convenience store, concealed in weeds.

Odd Claim

Johnson later claimed he took the truck because he saw it rolling along the street, with the keys inside. He admitted making the remark about his gang, but claimed Thomas was not present when he said it.

A gang expert testified that, based on tattoos and the known associations of the two men, they were E.Y.C. members and had stolen the vehicle for the gang. Vehicle theft, he explained, is a common E.Y.C. activity.

Nothing in Crawford barred that testimony, Hollenhorst wrote.

Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions,” the justice explained. “This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion.  Crawford itself states that the Confrontation Clause ëdoes not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’”

Here, the justice continued, the expert testified to what he had been told about Thomas and his gang associations, not to prove those matters, but to support his opinion that Thomas had acted on behalf of the gang in taking or receiving the stolen vehicle.

The case is People v. Thomas, 05 S.O.S. 3337.


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