Supreme Court Watch: Updating Giles v. California

Following U.S. Supreme Court remand, California Court of Appeal, Second Appellate District holds that the admission of the victim’s statement violated the Confrontation Clause and the error was not harmless beyond a reasonable doubt, requiring reversal of the judgment and a remand to the trial court, in People v. Giles (No. B166937)

Last year, the Supreme Court issued its latest Confrontation Clause ruling in Giles v. California, 554 U.S. _, 128 S.Ct. 2678, following the landmark decision in Crawford v. Washington, 541 U. S. 36 (2004). In Giles, the Supreme Court considered the application of the forfeiture by wrongdoing exception under the Confrontation Clause, which allows an unconfronted testimonial statement to be admitted where a defendant commits a wrongful act that makes the witness unavailable to testify at trial.

The Supreme Court held that under the Confrontation Clause, the forfeiture by wrongdoing exception requires the proponent to show that “the defendant intended to prevent a witness from testifying.” Giles, 554 U.S. _, 128 S.Ct. at __. The case was remanded to the California Supreme Court, which remanded the case to the California Court of Appeal, Second Appellate District (depicted in the accompanying photograph). The appellate court ordered supplemental briefing and reversed the conviction and remanded the case to the trial court. See People v. Giles, (No. B166937).

Summary Facts

In the case, a California jury convicted the defendant Giles of first degree murder and found he personally discharged a firearm causing great bodily injury or death. On the fact of the case, defendant Giles shot his ex-girlfriend six times at his grandmother’s house outside the garage, which was unseen by anyone else. The defendant’s niece had heard the defendant talking with his former girlfriend. When she heard the shots, she and the defendant’s grandmother ran outside and “saw Giles standing near [victim] with a gun in his hand.” He fled and was arrested two weeks later. He claimed self-defense. At trial, the defendant took the stand. He told the jury that he was aware that his ex-girlfriend had previously shot a man and had vandalized the defendant’s home and car. He claimed she was jealous, threatened him and charged him. He did not intend to kill her.

The government introduced a statement of the ex-girlfriend made to police investigating a domestic violence dispute three weeks before the shooting. On that occasion, the victim told police that the defendant accused her of an affair and threatened her. He choked and punched her. He opened a folding knife, held it three feet from her, and said, “If I catch you fucking around I’ll kill you.” These statements were admitted under Cal. Evid. Code Ann. § 1370 (admitting written statements of an unavailable witness describing infliction or threat of physical injury). After his jury conviction, he received a sentence of 50 years to life imprisonment. The California Supreme Court upheld the admission of the victim’s statement under the state’s version of the forfeiture by wrongdoing exception, Cal. Evid. Code § 1370. The defendant forfeited his confrontation right to the prior statement by causing the murder of the victim. See People v. Giles, 40 Cal.4th 833 (2007). After the U.S. Supreme Court vacated the conviction in Giles v. California, 554 U.S. _, 128 S.Ct. 2678 (2008), the California Supreme Court remanded the case to the California Supreme Court, which remanded the case to the California Court of Appeal, Second Appellate District.

Summary Of Latest Ruling

The California Court of Appeal, Second Appellate District held that the admission of the victim’s statements violated the Confrontation Clause and the error was not harmless beyond a reasonable doubt, requiring reversal of the judgment and a remand to the trial court.

The victim’s statements satisfied the California Evidence Code § 1370 allowing a hearsay statement that describes “the infliction or threat of physical injury upon the declarant” which “was made at or near the time of the infliction or threat of physical injury” and “under circumstances that would indicate its trustworthiness,” but the statements were inadmissible under the Confrontation Clause.
The statements were “testimonial” under the Confrontation Clause “because they were made in response to a focused police interview aimed at establishing the circumstances of a crime.” The state appellate court noted this determination was made “without prejudice to the trial court's assessment of any foundational showing that may be made on retrial.” The trial occurred before the decision in Crawford v. Washington, 541 U. S. 36 (2004). In Giles, the U.S. Supreme Court assumed without deciding that the statements were testimonial. See Giles, 554 U.S. _, 128 S.Ct. at __ (“The State does not dispute here, and we accept without deciding, that [victim] Avie’s statements accusing Giles of assault were testimonial.”).
The Forfeiture by Wrongdoing exception under the Confrontation Clause did not apply “[b]ecause the prosecutor presented no evidence that appellant killed Avie with intent to prevent her from testifying or cooperating in a criminal prosecution.” This determination was also made “without prejudice to the trial court's assessment of any foundational showing upon retrial.”
The error in admitting the victim’s statements was not harmless beyond a reasonable doubt since a review of the record established that “a reasonable doubt exists whether the admission of Avie's statements contributed to the jury's verdict.” The California appellate court explained: “Avie's statements were important. As respondent correctly notes, Avie was unarmed and physical evidence suggested that appellant continued to shoot her after she hit the ground. Appellant admitted shooting Avie and relied entirely on self-defense, perfect and imperfect. Avie's statements to the officer that appellant threatened to kill her were not corroborated by other evidence, and tended to contradict appellant's testimony that he did not intend to kill her and that he shot her out of fear for his own safety based on her past threats, acts against his property, and knowledge that she had previously killed a man. In closing argument, the prosecutor used Avie's out-of-court statements to rebut the claim of self-defense by arguing that appellant had been violent with Avie before when he ‘took out a knife and threatened her and said he was going to kill her.’ Avie's statements were not cumulative.”
Finally, the appellate court concluded the evidence sufficient to establish the defendant acted with premeditation and deliberation necessary to support his conviction of first degree murder.

The appellate court left the door open for the government to present evidence under the new Giles standard on any retrial. The state trial took place without the benefit of either the Crawford or Giles opinions, which were decided later. Whether the government will be able to admit the victim’s statements remains to be seen.