Metropolitan News-Enterprise


Monday, January 14, 2008


Page 1


U.S. High Court Will Hear Murder Case From Los Angeles


From Staff and Wire Service Reports


The U.S. Supreme Court agreed to decide Friday whether a Los Angeles Superior Court judge was correct in ruling that 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 in March that Dwayne Giles could not complain about his inability to cross-examine ex-girlfriend Brenda Avie because he had made her “unavailable” to testify by killing her. 

Los Angeles Superior Court Judge Victoria Chavez—who was subsequently elevated to the Court of Appeal—and Div. Six of this district’s Court of Appeal had earlier reached the same conclusion.

At his trial for Avie’s murder, 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, Chavez 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 California high court, Justice Ming W. Chin agreed, saying Crawford  preserved forfeiture by wrongdoing as a valid exception to the Confrontation Clause. 

Giles’ attorney, Marilyn Burkhart of Los Angeles, asked the high court to take the case in order to resolve a split of authority, post-Crawford, as to whether the exception applies in cases where the defendant did not kill the victim in order to prevent him or her from testifying.

“A forfeiture rule that is triggered by mere causality emasculates the right to confrontation guaranteed in Crawford, because this exception will swallow the rule and it creates a perverse incentive for prosecutors to introduce hearsay rather than provide an opportunity for cross-examination.” Burkhart wrote.

The state’s legal team, including Deputy Attorneys General Kristofer Jorstad and Russell A. Lehman, responded that “petitioner’s intent to kill [Avie]necessarily included an intent to silence her” and that both pre- and post-Crawford precedent supports admission of the statements.

University of Michigan professor Richard Friedman, who writes extensively on Confrontation Clause issues, filed an amicus brief urging the high court to take the case in order to resolve the issue, while largely agreeing with the California courts’ analysis. Adoption of the “purpose” test argued for by the defense, he said, will create exceptional difficulty in prosecuting domestic violence cases, among other results.

The case will be argued in April.


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