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Name: People v. Kilday
Case #: A099095
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 10/22/2004
Subsequent History: Rev. granted 1/19/05: S129567

In his appeal from his conviction for torture and spousal abuse, appellant contended that the trial court erred in admitting the victim’s out-of-court statements to police officers under the statutory hearsay exception for statements describing the injuries to the declarant, under Evidence Code section 1370, subdivision (a)(1). The victim became unavailable due to her unwillingness to testify. There were three separate statements admitted: The first was made to officers who responded to a call from a witness about the injuries. The victim described her injuries to the officers shortly after they arrived. The second was made later in response to questioning by a female officer, brought in for the purpose of eliciting information from the victim. The third was a tape recorded interview by officers. The appellate court held that the admission of the second and third statements was error. Those two statements were testimonial and admission violated the confrontation clause under the rule announced in Crawford (which was decided while this case was pending). The first statement was admissible because the officers were not producing evidence in anticipation of a criminal prosecution, but merely eliciting basic facts about the nature and cause of the injuries. Therefore, the statement was not testimonial. The second two statements were testimonial hearsay, and therefore not admissible because appellant had no opportunity to cross-examine the declarant.