Hearsay statements, the pre-arrest statements of a sister, were admissible at the trial of her brother based on their conspiracy to kill their stepfather and to make the murder look like a home-invasion robbery by a masked intruder. The exception to the hearsay rule in Evidence Code section 1223 applied even though no conspiracy was charged, so long as there was a foundation of prima facie evidence of a conspiracy that did not end with the substantive offense of the killing, but also included the 911 call and police interviews as steps taken to cover up the killing. There was also no violation of the right to confront and cross-examine pursuant to Crawford v. Washington (2004) 541 U.S. 36. The sister’s 911 call to report the home-invasion was not testimonial in nature. The first interview at the crime scene was also not testimonial in nature because the police were trying to determine what happened and to help locate the killer who might still be in the area. The second interview, conducted at the police station and tape-recorded, was an attempt to obtain information to assist in the investigation. At a third interview, the sister’s inconsistencies made the police suspicious such that the tape-recorder was turned on. The second and third interviews were testimonial under Crawford. However, the sister was making the statements in furtherance of the conspiracy by reinforcing the notion that she had been robbed and tied up while her stepfather was killed. United States v. Stewart (2nd Cir. 2006) 433 F.3d 273, 293 held that both truthful and untruthful statements, made when the object of a conspiracy is to obstruct justice and mislead law enforcement, come within the exception. While there was no charge of conspiracy in this case, the sister’s statements served the purpose of the continuing conspiracy and were not inadmissible under Crawford. An alternative basis for admissibility would be that the sister’s false statements were not offered for their truth and so they were thus not “testimonial” in nature. It was not error to instruct on CALCRIM No. 418, that the jury could not consider the sister’s statements unless the People proved by a preponderance of the evidence that a conspiracy existed when the statement was made, she was a member of the conspiracy when she made the statement, the statement was to further the goal of the conspiracy, and it was made before or during the time the brother and sister were participating in the conspiracy.
The defendant’s introduction of his good character opens the door for hearsay which undermines that good character and removes the shield that the law provides. The brother charged with murder presented seven witnesses to attest to his peaceful and non-violent character. The prosecution introduced a rebuttal witness, a former girlfriend, to testify that he was a violent person. While the witness had only previously reported slapping and sexual abuse, in her testimony she blurted out that he had raped her. The court immediately recessed and offered to strike the testimony. The defense sought a mistrial on the grounds that the prejudice could not be cured. The court did not strike the testimony, cautioned the prosecutor not to over-reach, and granted the defense a continuance for surrebuttal to impeach the girlfriend. The evidentiary error was reviewed for abuse of discretion. The trial court should have followed its inclination to strike the testimony and admonish the jury even if defense counsel did not request it. Although it should have been stricken, the error was harmless in light of the ample evidence of guilt. It was not reasonably probable that the jury would have returned a different verdict if the testimony had been stricken.
Defendant did not meet the burden of demonstrating judicial bias in a motion for new trial. A defendant does not meet the burden of demonstrating judicial bias in a motion for new trial by relying on an email indicating that an attorney has information about the case and an investigator’s report of an interview of the attorney in which he reported hearing the judge comment from the spectator section of the courtroom during arraignment that the victim was a good man who “did not deserve what these ‘punks’ did to him.” There was no declaration from the attorney or any offer to substantiate the claim.