Murder conviction reversed where trial court erroneously instructed the jury that any testimony from an accomplice requires corroboration before the jury may accept it as true. Smith and Mitchell were convicted of murdering a woman during a burglary. On their first appeal, their convictions were reversed. The California Supreme Court granted the prosecution’s petition for review as to reversal of Mitchell’s conviction and transferred the case to the Court of Appeal for reconsideration in light of People v. Grimes (2016) 1 Cal.5th 698. Held: Reversed as to Smith; affirmed as to Mitchell. Evidence Code section 1111 places a limitation on the use of accomplice testimony to convict a defendant. An accomplice is defined as one who is liable for prosecution for the same offense charged against the defendant on trial in the case in which the testimony of the accomplice is given. Here, the jury was instructed that any accomplice testimony requires corroboration before the jury may accept it as true (CALCRIM No. 301). However, there is no corroboration requirement with respect to exculpatory accomplice testimony. At trial Mitchell, who was Smith’s accomplice, provided exculpatory testimony as to himself and Smith. The accomplice corroboration instruction became the point of disagreement between the jurors, leading to the dismissal of the lone holdout juror who was unwilling to follow the court’s instruction regarding the need for corroboration. The record shows that the jury was applying the corroboration requirement to Mitchell’s exculpatory testimony. Whether evaluated under the Chapman or Watson standards, the error requires reversal as to Smith.
Hearsay evidence of Smith’s statements, which inculpated her and Mitchell in the crimes, and which shifted blame for the murder to Mitchell, were properly admitted against Mitchell as statements against Smith’s penal interest. Evidence Code section 1230 provides an exception to the hearsay rule for declarations against penal interest, but is generally inapplicable to a statement or portion of a statement that is not specifically disserving to the declarant’s interests. In Grimes, the court held that a hearsay statement that is in part exculpatory and in part inculpatory, may be admissible “in view of surrounding circumstances, even though the exculpatory portion of the statement is not independently disserving of the declarant’s interest.” In determining admissibility, the trial court must consider whether the circumstances in which the statement was made suggest improper motives for any blame shifting. The references that Smith made to Mitchell also disserved her penal interest because they placed her at the crime scene, assisting Mitchell and following his directions. Thus, those portions of Smith’s statements implicating her in the crime were inextricably intertwined with those portions shifting blame for the murder onto Mitchell. Further, the statements were made in an informal setting among friends, which suggests no reason to exaggerate. The statements were admissible. In any event, the admission of Smith’s hearsay statements, was not prejudicial as to Mitchell. [Editor’s Note: Justice Aaron dissented, concluding that Smith’s statements, which shifted the majority of the blame to Mitchell, had a “net exculpatory effect” and were thus improperly admitted against Mitchell as statements against Smith’s interest. Further, they lacked sufficient indicia of trustworthiness to be admissible.]
Admission of hearsay evidence of Smith’s statements inculpating Mitchell in the murder did not violate the confrontation clause. Mitchell argued he was unconstitutionally denied the right to cross-examine Smith regarding her hearsay statements inculpating him in the murder, which were admitted as statements against Smith’s penal interest. In Crawford v. Washington (2004) 541 U.S. 36, the Court held that the Sixth Amendment prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is unavailable to testify, and the defendant had a prior opportunity for cross-examination. Statements are nontestimonial when made in the course of a police interrogation under circumstances reflecting the primary purpose of the interrogation is to aid police in dealing with an ongoing emergency. Other factors are the formality of the interrogation and to whom the statements are made. When the primary purpose of the interrogation is to create an out-of-court substitute for trial testimony, the statements are testimonial. The hearsay admitted as statements against Smith’s penal interests were not testimonial. Therefore Mitchell was not improperly denied his right to confront witnesses.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069445A.PDF