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Name: Hernandez v. Small
Case #: 00-56286
Court: US Court of Appeals
District 9 Cir
Opinion Date: 03/07/2002
Subsequent History: Cert. den. 10/7/02

In this habeas case, the Ninth Circuit found that the admission of testimony at a California state trial was not contrary to the Confrontation Clause. Late at night at a market, petitioner and co-defendant Cota shot a rival gang member, and beat and shot another gang member, leaving him for dead – however, he survived. They stole the latter’s car and then abandoned it elsewhere. Eventually, Cota made self-inculpatory statements to the police that he had ridden to the market that night to steal a car. Both co-defendant’s invoked their 5th Amendment rights not to testify, thus becoming “unavailable.” They had separate jurys. At petitioner’s trial, the prosecution sought to introduce Cota’s statements, sanitized to exclude any reference to petitioner. Over objection, the statement came in as one within California’s hearsay exception for declarations against penal interests, and accordingly that its admission did not violate the Confrontation Clause even though Cota was not available to cross-examine. The trial court concluded that the declaration against penal interest exception was “a firmly rooted exception to the hearsay rule.” The California Court of Appeal upheld the ruling in an unpublished opinion. The California Supreme Court summarily denied a review petition. The district court similarly denied a habeas petition on this issue. The Court of Appeals here clarifies that in Williamson v. United States (1994) 512 U.S. 594, the U.S. Supreme Court explicitly refrained from deciding “whether the hearsay exception for declarations against interest is ‘firmly rooted’ for Confrontation Clause purposes.” (Id. at p. 605.) The Supreme Court also recently clarified the issue in its recent decision in Lilly v. Virginia (1999) 527 U.S. 116. In Lilly, the category of declarations against penal interest is classified into 3 subcategories: 1) voluntary admissions against the declarant; 2) exculpatory evidence offered by a defendant who claims that the declarant committed the crime; and 3) evidence offered by the prosecution to establish the guilt of the alleged accomplice of the declarant. Cota’s statement falls into this third subcategory as did the one in Lilly. The Lilly court declared that such statements “are not within a firmly rooted exception to the hearay rule . . . .” because “when an alleged accomplice testifies, his confession that ‘incriminate[s] himself togehter with defendant . . . ought to be received with suspicion, and with the very greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses.’ ” (Id. at p. 131, 133.) The question then becomes whether the written opinion of the California Court of Appeal was erroneous and contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court. The court here concluded that it did not only because Cota’s statement was redacted so that it did not inculpate his co-defendant – an issue discussed as distinquishable in Lilly.