People v. GilesPeople v. Giles
Lead Opinion
Opinion
In this case, defendant admitted that he killed his ex-girlfriend, but claimed that the killing was committed in self-defense. Over defendant’s objection, the trial court admitted the victim’s prior statements to a police officer who had been investigating a report of domestic violence involving defendant and the victim. The prior incident had occurred a few weeks before the killing. The victim related that, during that incident, defendant had held a knife to her and threatened to kill her.
Did defendant forfeit his right to confront his ex-girlfriend about the prior incident of domestic violence by killing her and thus making it impossible for her to be at the murder trial? Does the doctrine of “forfeiture by wrongdoing” apply where the alleged “wrongdoing” is the same as the offense for which defendant was on trial? Under that equitable doctrine, a defendant is deemed to have lost the right to object on confrontation grounds to the admission of out-of-court statements of a witness whose unavailability the defendant caused.
As explained below, we conclude that defendant forfeited his right to confront his ex-girlfriend when he killed her.
FACTS
A. The shooting.
Defendant dated Brenda Avie for several years. On the night of September 29, 2002, he was staying at his grandmother’s house along with several other family members. Defendant was in the garage socializing with his niece Veronica Smith, his friend Marie Banks, and his new girlfriend, Tameta Munks, when defendant’s grandmother called him into the house to take a telephone call from Avie. He returned to the garage and spoke to Munks, who then left.
Avie arrived at the house about 15 minutes later, after Munks had already left. She spoke with Smith and Banks in the garage for about half an hour. Smith went into the house to lie down and heard Avie and Banks leaving the garage together. A few minutes later, Smith heard defendant and Avie speaking to one another outside in a normal conversational tone. Avie then yelled “Granny” several times, and Smith heard a series of gunshots.
Smith and defendant’s grandmother ran outside and discovered defendant holding a nine-millimeter handgun and standing about 11 feet from Avie, who was bleeding and lying on the ground. Defendant’s grandmother took the gun from him and called 911. Smith drove defendant away from the house at his request, but he jumped out of her car and ran away after they had traveled several blocks. Defendant did not turn himself in to the police and was eventually arrested on October 15, 2002.
Defendant testified at trial and admitted shooting Avie, but claimed he had acted in self-defense. He explained that he had a tumultuous relationship with Avie and was trying unsuccessfully to end it. Avie would get very jealous of other women, including Tameta Munks, whom he had been dating. Defendant knew that Avie had shot a man before she met him, and he had seen her threaten people with a knife. He claimed that Avie had vandalized his home and car on two separate occasions.
According to defendant, he had a “typical” argument with Avie when she called him on the telephone on the day of the shooting. He told her Munks was at the house and Avie said, “Oh, that bitch is over there. Tell her I’m on my way over there to kill her.” Defendant told Munks to leave because he was worried about the situation, and Avie arrived soon afterwards. Defendant told everyone to leave and began closing up the garage where they had congregated. Avie walked away with Marie Banks, but she returned a few minutes later. Avie told defendant she knew Munks was returning and she was going to kill them both. Defendant stepped into the garage and retrieved a gun stowed under the couch. He disengaged the safety and started walking toward the back door of the house. Avie “charged” him, and defendant, afraid she had something in her hand, fired several shots. Defendant testified that it was dark and his eyes were closed as he was firing the gun. He claimed that he did not intend to kill her.
Marie Banks testified that she had seen defendant and Avie get into arguments before. Avie seemed angry when she came to defendant’s grandmother’s house on the day of the shooting, and she talked to defendant for about half an hour until defendant told everyone to leave. Avie and Banks left together, but as they were walking away they saw Munks. Avie said, “Fuck that bitch. Pm fixin’ to go back.” She walked back toward defendant’s grandmother’s house and Banks went home. Banks did not see the shooting.
B. The prior incident of domestic violence.
On September 5, 2002, a few weeks before the shooting, Officer Stephen Kotsinadelis and his partner investigated a report of domestic violence involving defendant and Avie. Defendant answered the door, apparently agitated, and allowed them to enter. Avie was sitting on the bed, crying. Officer Kotsinadelis interviewed Avie while his partner spoke to defendant in a different room. Avie said she had been talking to a female friend on the telephone when defendant became angry and accused her of having an affair with that friend. Avie ended the call and began to argue with defendant, who grabbed her by the shirt, lifted her off the floor, and began to choke her with his hand. She broke free and fell to the floor, but defendant climbed on top of her and punched her in the face and head. After Avie broke free again, defendant opened a folding knife, held it about three feet away from her, and said, “If I catch you fucking around I’ll kill you.” Officer Kotsinadelis saw no marks on Avie, but felt a bump on her head.
RELEVANT PROCEDURAL HISTORY
The trial court admitted Avie’s hearsay statements to Officer Kotsinadelis over defense
The jury convicted defendant of first degree murder (Pen. Code, §§ 187, subd. (a), 189)
The Court of Appeal upheld admission of Avie’s statements to the police. Applying the doctrine of forfeiture by wrongdoing, the Court of Appeal held that defendant “cannot be heard to complain that he was unable to cross-examine Avie about her prior, trustworthy statements to law enforcement when it was his own criminal violence that made her unavailable for cross-examination.” It noted that, although the issue of forfeiture by wrongdoing was not litigated below, evidence of Avie’s hearsay statements was admitted under a statutory hearsay exception that appeared to be valid at the time of defendant’s pre-Crawford (Crawford v. Washington (2004)
We granted defendant’s petition for review to decide whether the Court of Appeal properly applied the forfeiture by wrongdoing doctrine.
DISCUSSION
The confrontation clause of the Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”
In Crawford v. Washington, supra,
Although Crawford dramatically departed from prior confrontation clause case law, it renounced only those exceptions to the confrontation clause that purported to assess the reliability of testimony.
Here, there is no dispute that the victim’s prior statements were testimonial in nature. (See Davis v. Washington (2006)
Defendant acknowledges that the forfeiture by wrongdoing doctrine is an exception to the confrontation clause, but argues that it is inapplicable here because defendant did not kill the victim with the intent of preventing her testimony at a pending or potential trial. Rather, where, as in this case, defendant killed the victim for unrelated personal reasons, the confrontation clause bars admission of the victim’s prior testimonial statements. To answer defendant’s claim, we first examine the development of the forfeiture by wrongdoing doctrine.
Although this court has not addressed the forfeiture by wrongdoing doctrine, federal and other state courts have affirmed its validity. The United States Supreme Court first applied the doctrine of forfeiture by wrongdoing in Reynolds v. United States, supra,
In applying the doctrine of forfeiture by wrongdoing, the court reasoned, “The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by [the defendant’s] own wrongful procurement, [the defendant] cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. . . . [I]f [a defendant] voluntarily keeps the witnesses away, he cannot insist on his [confrontation] privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.” (Reynolds, supra,
Notably, in describing the rule, the court did not suggest that the rule’s applicability hinged on Reynolds’s purpose or motivation
The high court recently affirmed the equitable nature of the forfeiture doctrine. In Davis, the court stated, “We reiterate what we said in Crawford: that ‘the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.’
Although the United States Supreme Court has cited Reynolds and addressed this doctrine infrequently, the lower federal courts began applying the forfeiture rule extensively in the context of witness tampering cases.
United States v. Carlson (8th Cir. 1976)
Other federal cases involved witness tampering where a defendant murdered or participated in the murders of a witness (see, e.g., United States v. Dhinsa (2d Cir. 2001)
The forfeiture by wrongdoing doctrine, as articulated by the lower federal courts, was codified with regard to federal hearsay rules in 1997 with the adoption of Federal Rules of Evidence, rule 804(b)(6) (28 U.S.C.). (United States v. Scott (7th Cir. 2002)
A similar pre-Crawford development of the forfeiture by wrongdoing rule occurred in the states. As with the federal courts, the state courts generally applied the rule when the defendant intended to, and did, tamper with an actual or potential witness to prevent the witness from cooperating with the authorities or testifying at trial. (See, e.g., State v. Valencia (Ct.App. 1996)
Crawford reshaped the confrontation landscape: Testimonial evidence that previously had been admitted under “firmly rooted” hearsay exceptions, or that met comparable reliability standards, became inadmissible unless the defendant had the opportunity to cross-examine the witness.
State v. Meeks (2004)
In United States v. Mayhew (S.D.Ohio 2005)
In United States v. Garcia-Meza (6th Cir. 2005)
Although not deciding whether the wife’s statements to the officers were testimonial, the Sixth Circuit Court of Appeals upheld the admission of the statements. Relying on the equitable principles outlined in Crawford and Reynolds, the court reasoned, “[Defendant admitted that he killed [his wife], thereby procuring her unavailability to testify. The dispute at trial concerned not whether he was the one to stab her, but whether he acted with premeditation to support a conviction of first degree murder. Under these circumstances, there is no doubt that the Defendant is responsible for Kathleen’s unavailability. Accordingly, he has forfeited his right to confront her.” (Garcia-Meza, supra,
Similarly, in People v. Moore (Colo.Ct.App. 2004)
In short, Meeks and Mayhew involved out-of-court statements relating to the charged offense itself. Garcia-Meza and Moore involved extrajudicial statements relating to a prior incident, similar to this case. Significantly, the courts in these cases applied the forfeiture by wrongdoing doctrine although there was no indication the defendants killed the victims with the intent of preventing testimony at a future trial. (See also People v. Bauder (2005)
Defendant contends that courts have traditionally applied the forfeiture doctrine only in the context of witness tampering cases, and that the federal rules have codified this approach. Thus, according to defendant, the Court of Appeal in this case and the above post-Crawford cases improperly expanded the doctrine by eliminating an intent-to-prevent-testimony requirement.
In fact, courts have disagreed over this requirement. Some state and federal courts have stated that the intent-to-silence requirement is only mandated by the federal rules and not by the Constitution. (See, e.g., Garcia-Meza, supra,
Other courts have stated that the intent-to-silence requirement is an element of their forfeiture by wrongdoing doctrines, although stopping short of holding that the intent requirement is constitutionally compelled. (See, e.g., United States v. Houlihan, supra,
Defendant’s argument relating to the intent requirement rests on the premise that the forfeiture by wrongdoing doctrine is, in essence, not based on broad forfeiture principles, but instead on waiver principles. Defendant points out that some cases have referred to the rule as the waiver by wrongdoing doctrine. (See, e.g., United States v. Cherry, supra,
However, the United States Supreme Court has characterized the rule in question as a “forfeiture” that “extinguishes confrontation claims on essentially equitable grounds,” not a waiver. (Crawford, supra,
As in Reynolds, many courts applying the rule (even in the context of witness tampering cases), emphasize the equitable
Thus, it appears that the intent-to-silence element required by some cases evolved from the erroneous characterization of the forfeiture doctrine as the waiver by misconduct doctrine. Because a waiver is an intelligent relinquishment of a known right, the intent-to-silence element was added to establish the defendant was on notice that the declarant was a potential witness and therefore knowingly relinquished the right to cross-examine that witness. (See United States v. Houlihan, supra, 92 F.3d at pp. 1279-1280.) But, “[t]he Supreme Court’s recent affirmation of the ‘essentially equitable grounds’ for the rule of forfeiture strongly suggests that the rule’s applicability does not hinge on the wrongdoer’s motive.” (Garcia-Meza, supra,
Although some courts have used the terms “waiver” and “forfeiture” interchangeably, the high court, in a pre-Crawford case, has explained that they are quite different. (United States v. Olano (1993)
In relating his version of the fatal events in this case, defendant again repeated statements allegedly made by the victim. He testified that they had had a “typical” argument earlier that day. The victim knew defendant was with his new girlfriend, and said she was on her way there to kill her. When she arrived, she threatened to kill both defendant and “that bitch.” Afraid she had something in her hand, defendant shot at her several times after she “charged” him. Thus, partially through the victim’s own alleged statements, defendant portrayed her as a violent, aggressive, foulmouthed, jealous, and volatile person.
Defendant now argues that admission of the victim’s extrajudicial statements to the police, which conflicted with his portrayal of the victim as the aggressor, violated his confrontation rights. Defendant should not be 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. “A defendant cannot prefer the law’s preference [for live testimony over hearsay] and profit from it . . . while repudiating that preference by creating the condition that prevents it.” (Steele v. Taylor, supra,
“The Roberts approach to the Confrontation Clause undoubtedly made recourse to [the forfeiture by wrongdoing] doctrine less necessary, because prosecutors could show the ‘reliability’ of ex parte statements more easily than they could show the defendant’s procurement of the witness’s absence. Crawford, in overruling Roberts, did not destroy the ability of courts to protect the integrity of their proceedings.” (Davis, supra, 547 U.S. at p.__ [
We must also decide whether the doctrine of forfeiture by wrongdoing applies where the alleged wrongdoing is the same as the offense for which defendant was on trial. In other words, defendant was on trial for the same wrongdoing (murder) that caused the forfeiture of his right to confront the victim. Because the two acts are the same, the court’s forfeiture finding (as a predicate evidentiary matter) depends on determining that defendant committed the charged criminal act.
In the classic witness tampering cases, the defendant is not on trial for the same wrongdoing that caused the forfeiture of his confrontation right, but rather for a prior underlying crime about which the victim was about to testify. (See, e.g., United States v. Balano, supra, 618 F.2d at pp. 625-626; United States v. Carlson, supra, 547 F.2d at pp. 1352-1353.) However, even in the context of witness tampering, courts have applied forfeiture where the defendant was charged with the same homicide that rendered the witness unavailable. (See, e.g., United States v. Dhinsa, supra, 243 F.3d at pp. 642-644, 650; United States v. Emery, supra,
The argument against permitting a judicial preliminary determination of forfeiture is that in ruling on the evidentiary matter, a trial court is required, in essence, to make the same determination of guilt of the charged crime as the jury. (United States v. Lentz, supra,
Regarding the applicable standard of proof, the Court of Appeal’s initial opinion held that the facts supporting the application of the forfeiture by wrongdoing doctrine must be proven to a trial court by
The majority of the lower federal courts have held that the applicable standard necessary for the prosecutor to demonstrate forfeiture by wrongdoing is by a preponderance of the evidence. (See, e.g., United States v. Cherry, supra,
Some federal courts do not even require a judicial preliminary determination of forfeiture; instead they allow the hearsay statement to be admitted at trial contingent on proof that the defendant wrongfully procured the unavailability of the declarant by a preponderance of the evidence. (See, e.g., United States v. Emery, supra,
The application of the rule should be subject to several limitations. First, the witness should be genuinely unavailable to testify and the unavailability for cross-examination should be caused by the defendant’s intentional criminal act. Second, a trial court cannot make a forfeiture finding based solely on the unavailable witness’s unconfronted testimony; there must be independent corroborative evidence that supports the forfeiture finding.
The forfeiture by wrongdoing doctrine, as adopted by us, only bars a defendant’s objection under the confrontation clause of the federal Constitution and does not bar statutory objections under the Evidence Code. Thus, even if it is established that a defendant has forfeited his or her right of confrontation, the contested evidence is still governed by the rules of evidence; a trial court should still determine whether an unavailable witness’s prior hearsay statement falls within a recognized hearsay exception and whether the probative value of the proffered evidence outweighs its prejudicial effect. (Evid. Code, § 352.) Finally, the jury should not be advised of the trial court’s underlying finding that defendant committed an intentional criminal act so that the jury will draw no inference about the ultimate issue of guilt based on the evidentiary ruling itself.
Here, the Court of Appeal correctly found that there was clear and convincing
The above independent evidence, considered with the victim’s prior statements, supports the Court of Appeal’s conclusion that defendant did not shoot in self-defense, and instead committed an unlawful homicide that caused the victim’s unavailability to testify at trial. As noted by the Court of Appeal, “the evidence supporting this [self-defense] theory was weak and it is inconceivable that any rational trier of fact would have concluded the shooting was excusable or justifiable.” Thus, defendant has forfeited his confrontation clause challenge to the victim’s prior out-of-court statements to the police.
CONCLUSION
We conclude that the Court of Appeal’s judgment should be affirmed.
George, C. J., Kennard, J., Baxter, J., and Corrigan, J., concurred.
Notes
As the relevant facts are undisputed, they are taken directly from the Court of Appeal’s opinion.
Unless otherwise stated, all statutory references are to the Penal Code.
Reynolds reviewed antecedent English common law cases (Lord Morley’s Case (1666) 6 How. St. Tr. 770; Harrison’s Case (1692) 12 How. St. Tr. 833; and Regina v. Scaife (Q.B. 1851) 117 Eng. Rep. 1271) and early American antecedents of the forfeiture cases (Drayton v. Wells (1819) 10 S.C. L. (1 Nott & McC.) 409; Williams v. The State (1856)
Between Reynolds and Crawford, the United States Supreme Court cited Reynolds infrequently and generally in the context of the admission of an unavailable witness’s prior sworn testimony at a proceeding which the defendant had attended. (See Diaz v. United States (1912)
Defendant argues that language in Davis regarding the forfeiture by wrongdoing doctrine—“when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims”—supports his claim that an intent-to-silence requirement is constitutionally compelled. (Davis, supra, 547 U.S. at p._[
Bourjaily v. United States, supra, 483 U.S. at pages 175-176, held that under the Federal Rules of Evidence, the government need only prove its threshold burden by a preponderance of the evidence when establishing the predicate facts relating to the admissibility of coconspirator statements. Although Bourjaily does not expressly consider the standard of proof on a confrontation clause claim, the discussion relies on constitutional cases in selecting the preponderance standard (e.g., United States v. Matlock (1974)
Davis, supra, 547 U.S. at page_[
Defendant argues that proof of forfeiture must be established by clear and convincing evidence. He points to Evidence Code section 1350, which establishes an independent, narrow hearsay exception in serious felony cases, based on forfeiture by wrongdoing principles. An unavailable witness’s out-of-court statements is admissible when there is “clear and convincing evidence that the declarant’s unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant.” (Evid. Code, § 1350, subd. (a)(1).) However, the Legislature, in establishing more stringent standards, is not the final arbiter of constitutional standards. (See Jones v. Superior Court (1970)
Concurrence Opinion
I concur in the judgment of affirmance. Like the majority, I conclude the doctrine of forfeiture by wrongdoing is not confined exclusively to witness-tampering cases, in which a defendant commits malfeasance in order to procure the unavailability of a witness, but can be applied to these facts as well, where defendant’s actions in procuring a witness’s unavailability were the same actions for which he stood trial.
That narrow conclusion is enough to dispose of this case. As the majority acknowledges, the evidence available independent of victim Brenda Avie’s statements demonstrated clearly and convincingly that defendant Dwayne Giles shot and killed her and was not acting in self-defense. (Maj. opn., ante, at p. 854.) Because of this intentional criminal misconduct, Giles forfeited his constitutional confrontation clause objection to the admission of Avie’s statements at trial. As the majority further correctly notes, this conclusion does not affect any statutory Evidence Code objections. {Ibid.) That should be the end of the matter.
Nevertheless, the majority proceeds to address and resolve two subsidiary questions unnecessary to this case’s disposition. First, it decides whether the prosecution, in order to use the victim’s hearsay statements, must demonstrate the defendant’s wrongdoing by clear and convincing evidence or only a preponderance of the evidence, despite its implicit acknowledgement the issue is not implicated here because either standard was satisfied. Second, it decides whether and to what extent the victim’s challenged statements may be used in making this threshold showing of wrongdoing, despite the fact, again, the
Although as a general matter I endorse the majority’s desire to offer guidance to the trial courts, here the procedural posture of the case and the substantive nature of the issues make reaching out to do so both unnecessary and unwise.
Procedurally, these issues were never addressed by either court below, not by the trial court, because Giles’s trial predated Crawford v. Washington (2004)
Were the issues at stake routine, the absence of any considered views from the parties or lower courts, in a case where the issues are immaterial to the case’s disposition, would mean less. Substantively, however, they are not routine. The questions of the appropriate standard of proof and the appropriate evidentiary basis for finding forfeiture of a constitutional right are questions of constitutional dimension. Proposition 8’s “Truth-in-Evidence” provisions require admission of evidence except to the extent existing statutory or constitutional rules or privileges require otherwise. (Cal. Const., art. I, § 28, subd. (d).) Thus, to decide the subsidiary questions the majority purports to resolve, we must examine the confrontation clause of the United States Constitution, and perhaps the due process clause as well, and determine what they require.
In lieu of serious constitutional analysis, however, the majority simply notes that most—but not all—lower federal courts to consider the question have settled on a preponderance of the evidence standard, and proceeds to join in that view. (Maj. opn., ante, at pp. 852-854.) That majority federal view might well be right, but it might also be wrong, especially given that the federal cases the majority relies upon uniformly antedate the United States Supreme Court’s recent reassertion of the breadth and importance of the confrontation clause in ensuring defendants their fair trials. (Crawford v. Washington, supra, 541 U.S. at pp. 68-69 [“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation”];
Constitutional analysis should not be embarked on lightly and never when a case’s resolution does not demand it. As then Associate Justice George once explained in like circumstances: “[T]he majority’s approach is inconsistent with well-established principles of judicial restraint. In his celebrated concurring opinion in Ashwander v. Valley Authority (1936)
These principles of judicial restraint apply with even greater force here, where the subsidiary constitutional questions the majority addresses are not only unnecessary to the case’s disposition but not well presented on the record before us. Consequently, while I concur in the judgment, I do not join in those portions of the majority’s analysis that decide the standard of proof or the permissible evidentiary basis for showing forfeiture by wrongdoing.
Moreno, J., concurred.
Appellant’s petition for a rehearing was denied May 23, 2007.
While Crawford accepted that forfeiture by wrongdoing could, when proven, extinguish confrontation clause rights, neither it nor the United States Supreme Court’s followup decision in Davis v. Washington have purported to resolve what showing will suffice to establish a forfeiture. (See Davis v. Washington (2006)
The issue of what evidentiary basis may support a showing of forfeiture of the constitutional right to confront and cross-examine the speaker by wrongdoing—May the prosecution rely solely, or even in part, on the very unconfronted statements it seeks to admit? May the trial court, without the opportunity for confrontation, make reliability determinations concerning these statements?—is likewise a constitutional question of uncertain resolution.