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Name: In re Moore
Case #: D045553
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/04/2005

The new standard for admission of hearsay evidence set forth in Crawford v. Washington (2004) 541 U.S. 36 does not apply retroactively to cases pending on collateral review at the time the decision was handed down. The defendant’s conviction for various sex offenses was affirmed in 2002. He had argued on direct appeal that the trial court had erred in admitting a portion of the victim’s 911 call. Following the decision in Crawford, defendant filed a petition for writ of habeas corpus, arguing that his trial counsel had been ineffective for failing to object to entry of the 911 tape on confrontation clause grounds. The Court of Appeal denied the writ petition, agreeing with the parties that Crawford announced a new rule of procedural constitutional law but finding that the decision met neither of the two exceptions to the retroactivity standard described in Teague v. Lane (1989) 489 U.S. 288. First, the decision neither placed any primary, private conduct beyond the power of law-making authorities to proscribe nor prohibited any category of punishment for specific offenses. Second, the Crawford decision was not a watershed change in criminal procedure along the lines of Gideon v. Wainwright (1963) 372 U.S. 335, because Crawford did not change the right of confrontation, but only altered the standard for admission of hearsay evidence.