People v. Giles

• Decision Date: 25 October 2004
• Docket Number: No. B166937.,B166937.
• Citation: 19 Cal.Rptr.3d 843,123 Cal.App.4th 475
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dwayne GILES, Defendant and Appellant.

19 Cal.Rptr.3d 843

123 Cal.App.4th 475

The PEOPLE, Plaintiff and Respondent, v. Dwayne GILES, Defendant and Appellant.

No. B166937.

Court of Appeal, Second District, Division 6.

October 25, 2004.

As Modified on Denial of Rehearing November 22, 2004.

Review Granted December 22, 2004.

[19 Cal.Rptr.3d 844]

Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

COFFEE, J.

Appellant Dwayne Giles was sentenced to prison for a term of 50 years to life after a jury convicted him of first degree murder and found true an allegation that he had personally discharged a firearm causing great bodily injury or death. (Pen.Code, §§ 187, subd. (a), 189, 12022.53, subd. (d).) He contends he was denied his Sixth Amendment right to confront witnesses because the trial court admitted hearsay evidence of statements by the murder victim regarding a prior act of domestic violence. He also argues that his conviction must be reduced to second degree murder because the evidence was insufficient to show that he acted with premeditation and deliberation. We conclude appellant has forfeited his Confrontation Clause arguments through his own wrongdoing and the evidence was sufficient to support the judgment.

FACTS

Appellant dated Brenda Avie for several years. On the night of September 29, 2002, he was staying at his grandmother's house along with several other family members. Appellant was out in the garage socializing with his niece Veronica Smith, his friend Marie Banks, and his new girlfriend Tameta Munks when appellant's grandmother called him into the house to take a telephone call from Avie. He then returned to the garage and spoke to Munks, who then left.

Avie arrived at the house about 15 minutes later, after Munks had already left. She conversed with Smith and Banks in the garage for about half an hour. Smith went into the house to lie down and heard Avie and Banks leaving the garage together. A few minutes later, she heard appellant and Avie speaking to one another outside in a normal conversational tone. Avie then yelled "Granny" several times, and Smith heard a series of gunshots.

Smith and appellant's grandmother ran outside and discovered appellant holding a nine millimeter handgun and standing about 11 feet from Avie, who was bleeding and lying on the ground. Appellant's grandmother took the gun from him and called 911. Smith drove appellant away from the house at his request, but he jumped out of her car and ran away after they had traveled several blocks. Appellant did not turn himself in to police and was eventually arrested on October 15, 2002.

Avie had been shot six times in the torso area. Two of those wounds were fatal; one was consistent with her holding up her hand at the time she was shot; one was consistent with her having turned to her side when she was shot; and one was consistent with the shot being fired while she was lying on the ground. Avie was not carrying a weapon when she was shot.

Appellant testified at trial and admitted shooting Avie, but claimed he had acted in self-defense. He explained that he had a tumultuous relationship with Avie and was trying unsuccessfully to end it. Avie would get very jealous of other women, including Tameta Munks, whom he had been dating. Appellant knew that Avie had shot a man before she met him, and he had seen her threaten people with a knife. He claimed that Avie had vandalized his home and car on two separate occasions.

According to appellant, he had a "typical" argument with Avie when she called him on the telephone on the day of the shooting. He told her Munks was at the house and Avie said, "Oh, that bitch is over there. Tell her I'm on my way over there to kill her." Appellant told Munks to leave because he was worried about the situation, and Avie arrived soon after. Appellant told everyone to leave and began closing up the garage where they had congregated. Avie walked away with Marie Banks, but she returned a few minutes later and told appellant she knew Munks was returning and she was going to kill them both. Appellant stepped into the garage and retrieved a gun stowed under the couch. He disengaged the safety and started walking toward the back door of the house. Avie "charged" him, and appellant, afraid she had something in her hand, fired several shots. Appellant testified that it was dark and his eyes were closed as he was firing the gun. He claimed that he did not intend to kill her.

Marie Banks testified that she had seen appellant and Avie get into arguments before. Avie seemed angry when she came to appellant's grandmother's on the day of the shooting, and she talked to appellant for about half an hour until appellant told everyone to leave. Avie and Banks left together, but as they were walking away they saw Tameta Munks. Avie said, "Fuck that bitch. I'm fixin' to go back." She walked back toward appellant's grandmother's house and Banks went home. Banks did not see the shooting itself.

DISCUSSION

Right of Confrontation — Forfeiture by Wrongdoing

A few weeks before the shooting in this case, police officers investigated a report of domestic violence involving appellant and Avie. Evidence about the incident was offered by the prosecution to prove appellant's propensity for domestic violence under Evidence Code section 1109. Officer Stephen Kotsinadelis testified that when he and his partner responded to a call on September 5, 2001, appellant answered the door, apparently agitated, and allowed him to enter. Avie was sitting on the bed, crying. Kotsinadelis interviewed Avie while his partner spoke to appellant in a different room. Avie said she had been talking to a female friend on the telephone when appellant became angry and accused her of having an affair with that friend. Avie ended the call and began to argue with appellant, who grabbed her by the shirt, lifted her off the floor, and began to choke her with his hand. She broke free and fell to the floor, but appellant climbed on top of her and punched her in the face and head. After Avie broke free again, appellant opened a folding knife, held it about three feet away from her, and said, "If I catch you fucking around I'll kill you." Officer Kotsinadelis saw no marks on Avie, but felt a bump on her head.

Avie's hearsay statements to Officer Kotsinadelis were admitted over defense counsel's objection. The trial court ruled the statements were admissible under Evidence Code section 1370, which establishes a hearsay exception for certain out-of-court statements describing the infliction of physical injury upon the declarant when the declarant is unavailable to testify at trial and the statements are trustworthy.¹

Citing the recent United States Supreme Court decision in Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, which was issued after the trial in this case, appellant argues that the admission of Avie's statements to Officer Kotsinadelis violated his rights under the Confrontation Clause of the federal Constitution. (U.S. Const., 6th & 14th Amends.) In Crawford, the court held that "testimonial" hearsay was admissible only when the declarant was unavailable and the defendant has had an opportunity to cross-examine the declarant. Overruling former case law that permitted the introduction of hearsay evidence so long as it fell within a firmly rooted hearsay exception or contained particularized guarantees of trustworthiness, the court announced a new rule of constitutional law: "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." (Id., 541 U.S. at pp. 68-69, 124 S.Ct. at p. 1374, overruling Ohio v. Roberts (1980) 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597.) Appellant contends that Avie's statements to Officer Kotsinadelis were testimonial and should have been excluded.

The resolution of this issue is not obvious from Crawford itself, which declined to "spell out a comprehensive definition of `testimonial.'" (Crawford v. Washington, supra, 541 U.S. at p. 68, 124 S.Ct. at p. 1374.) "Whatever else the term covers, it applies at minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." (Ibid., italics added.) The court used "interrogation" in its "colloquial, rather than any technical legal, sense" (Id., 541 U.S. at p. 71, fn. 4, 124 S.Ct. at p. 1365, fn. 4), and some decisions interpreting Crawford have construed an initial interview such as the one conducted by Officer Kotsinadelis to be an "interrogation" producing testimonial statements. (E.g., People v. Sisavath (2004) 118 Cal.App.4th 1396, 1402, 13 Cal.Rptr.3d 753; Moody v. State (2004) 277 Ga. 676, 594 S.E.2d 350, 354; State v. Clark (N.C.2004) 598 S.E.2d 213, 219-220.) Other courts, however, have concluded that informal statements to police about a crime that has just occurred are not the functional equivalent of in-court testimony and are not testimonial within the meaning of Crawford. (E.g., Hammon v. State (Ind.2004) 809 N.E.2d 945, 952-953.)

We need not resolve whether Avie's statements to Officer Kotsinadelis were testimonial. Assuming they were, we agree with the Attorney General that appellant is barred from asserting a Confrontation Clause objection under the doctrine of forfeiture by wrongdoing. This doctrine embraces the equitable principle that a defendant who has rendered a witness unavailable for cross-examination through a criminal act (in this case, homicide) may not object to the introduction...