Tuesday, March 6, 2007
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Supreme Court: Murder Defendant Forfeited His Right To Object to Victim’s Testimonial Hearsay Statements
By TINA BAY, Staff Writer
A murder defendant forfeited his right to object to the admission of “testimonial” hearsay statements his victim made before her death by killing her and thus causing her unavailability at trial, the California Supreme Court ruled yesterday.
The justices unanimously affirmed an October 2004 ruling by this district’s Div. Six, which held that defendant Dwayne Giles could not complain about his inability to cross-examine his victim because “it was his own criminal violence that made her unavailable for cross examination.”
At his trial for the murder of ex-girlfriend Brenda Avie, Giles unsuccessfully objected to the introduction of statements Avie had made to police investigating a domestic violence incident involving her and Giles several weeks before the killing. Prosecutors proffered the hearsay statements—in which Avie claimed Giles choked her, punched her, and threatened her with a knife after accusing her of having an affair with a female friend—to refute Giles’ portrayal of Avie as the aggressor on the night of her murder.
Giles maintained that Avie sought him out at his grandmother’s house, where he was staying, and threatened to kill him and his new girlfriend, which prompted him to retrieve a gun from the garage. She thereafter “charged” him, he claimed, and he shot her fearing she had something in her hand. He denied intending to kill her.
Over Giles’ objection,then-Los Angeles Superior Court Judge Victoria Chavez, who has since been elevated to the Court of Appeal, permitted Avie’s police interview remarks to be introduced into evidence on the basis of Evidence Code Sec. 1370. The statute allows out-of-court hearsay statements to be admitted if they describe the infliction or threat of physical injury upon the declarant.
A jury found Giles guilty of murder with personal use of a firearm, and Chavez sentenced him to 50 years to life in prison.
On appeal, he argued that under Crawford v. Washington (2004) 1245 S. Ct. 1354, the admission of Avie’s remarks to police violated his rights under the Confrontation Clause of the U.S. Constitution because he was deprived of the opportunity to cross-examine her regarding them.
The Court of Appeal held that although Avie’s statements constituted testimonial hearsay evidence generally barred by Crawford, they were admissible under the doctrine of “forfeiture by wrongdoing.” Under that equitable doctrine, a defendant is deemed to have lost the right to object to the admission of out-of-court statements of a witness whose unavailability he caused.
The appellate justices found the doctrine applied because there was clear and convincing evidence that Giles produced Avie’s unavailability through criminal conduct.
Writing for the high court, Justice Ming W. Chin agreed, explaining that Crawford preserved forfeiture by wrongdoing as a valid exception to the Confrontation Clause.
“Defendant should not able to take advantage of his own wrong by using the victim’s statements to bolster his self-defense theory, while capitalizing on her unavailability and asserting his confrontation rights to prevent the prosecution from using her conflicting statements,” Ming wrote.
Forfeiture by wrongdoing applies even where the alleged wrongdoing is the same as the offense for which the defendant is on trial, the justice added.
A majority of the justices—excluding Justices Kathryn M. Werdegar and Carlos R. Moreno—further held that the facts supporting the application of the forfeiture by wrongdoing doctrine must be proven to a trial court by a preponderance of the evidence. Under the Court of Appeal’s analysis, Chin said, that standard was met.
In a separate concurrence joined by Moreno, Werdegar said the majority should not have ruled on the appropriate standard of proof for showing forfeiture by wrongdoing, because the issue was never addressed in the lower courts, and was unnecessary to the disposition of Giles’ appeal.
“Constitutional analysis should not be embarked on lightly and never when a case’s resolution does not demand it,” she said.
The case is People v. Giles, 07 S.O.S. 1085.
Copyright 2007, Metropolitan News Company