Thursday, July 26, 2012
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C.A. Upholds Admission of Threatened Witness’ Hearsay Statement
By KENNETH OFGANG, Staff Writer
The rule allowing an out-of-court statement by an unavailable witness to be admitted into evidence if the witness’ absence is tied to wrongdoing by the defendant is not limited to cases of homicide, the Court of Appeal for this district has ruled.
Div. Five Tuesday affirmed Kevin Jermaine Jones’ conviction on charges of making a criminal threat, grand theft from a person, and simple assault. Justice Stanley Mosk, writing for the panel, said Los Angeles Superior Court Judge Cary H. Nishomoto correctly applied the “forfeiture by wrongdoing” doctrine in allowing a detective to relate what the absent witness had told her.
The witness was Dominique Durden, a friend of Bri-Ana Breland, the alleged victim in the case. Breland claimed that Jones approached her as she was sitting in a car, waiting for Jones’ brother, the father of her two children, to return from paying a bill.
Jones accused her of telling Durden that Jones was seeing another woman. When she denied it, she testified, Jones choked her, threatened to kill her, and grabbed and threw away her cell phone as she reached for it to call 911.
As he continued to threaten her, she said, she drove away and eventually made her way to the police station and reported what had occurred.
Fearful Victim
Breland testified that she was fearful of further violence. Jones’ brother, she said, had told her the night before her testimony that she should not go to court.
Det. Marya Parente interviewed Durden twice prior to trial. In the course of those interviews, Parente testified over defense objection, Durden said she had ended their relationship because Jones was violent towards her, and that he called her the day of the incident with Breland, saying he “just choked your homegirl and I have her phone.”
Durden also told Parente she was afraid of Jones, and Parente said Durden seemed reluctant to appear in court. Durden was served with a subpoena, and a body attachment was issued in the amount of $75,000, but Parente said she and other officers were unable to locate her.
After Durden failed to appear, Parente said, the detective accessed jail records and discovered that Jones had telephoned Durden 12 times from the jail, covering about 10 hours of conversation, portions of which were admitted into evidence.
Judge’s Reasoning
Nishimoto, in admitting the evidence, said it was clear that Durden felt she was being pressured, and believed that she would be harmed if she testified. He rejected the defense argument that admission of the hearsay statements would violate the Sixth Amendment right of confrontation.
Mosk, writing Tuesday for the Court of Appeal, noted that the Supreme Court has recognized the forfeiture by wrongdoing doctrine as an exception to the rule against admission of “testimonial” hearsay. The defense argument that the rule should apply only when the defendant has killed the witness has not been accepted in any jurisdiction, the justice said.
“The rationale behind the doctrine does not support such a limitation,” Mosk wrote, noting that the rule has also been applied in cases of bribery and intimidation.
Unpublished Portion
In an unpublished portion of the opinion, the justice rejected the argument that admission of evidence that Jones choked Durden a year before the Breland incident—prosecutors declined to file charges at the time—and of the evidence regarding the jailhouse phone calls, was reversible error under Evidence Code Sec. 352.
The uncharged crime evidence was harmless, given that the jurors obviously found Breland’s testimony convincing, Mosk said, and the jailhouse calls were obviously probative in that they exhibited consciousness of guilt and were not prejudicial in terms of the statute.
The defendant was represented on appeal by Rachel Varnell, by appointment. Deputy Attorneys General Joseph P. Lee and Kathy S. Pomerantz represented the prosecution.
The case is People v. Jones, B233204.
Copyright 2012, Metropolitan News Company