ARANDA/BRUTON, CONSCIOUSNESS OF GUILT, AND CRAWFORD
There are a bunch of issues in this case. First, Aranda (63 Cal.2d 518) and Bruton (391 U.S. 123) bar use of an out-of-court statement made by a non-testifying co-defendant against another defendant (absent effective redaction).
Some of the statements here were redacted. But one wasn't: the co-defendant's statement that he and the defendant went looking for the guy their friend had a fight with. Of course, they
killed that guy. The Court of Appeal, incredibly, says that admission of this statement didn't violate Aranda/Bruton because the Court of Appeal finds this statement isn't "powerfully incriminating because it facially" incriminated the defendant; it wasn't "direct" evidence that the perpetrators intended to assault or kill the victim. Right; and it was admitted for what purpose?
Second issue: the defendant's standoff with SWAT. The Court of Appeal says that resistance to arrest, like flight, is admissible to show consciousness of guilt. But wait, the defendant had
two other uncharged shooting incidents for which he might have been resisting arrest. Too bad, they can't reward a pro over a neophyte with only one offense. Of course, this makes consciousness of guilt nonsense; what if he was guilty of two offenses but not guilty of this
Third issue: Crawford (541 U.S. 36) bars admission of testimonial hearsay unless we get to confront the declarant. But what if the hearsay isn't testimonial? Well, Smith (135 Cal.App/4th 914) says that the constitutional restriction on nontestimonial hearsay is the old Ohio v. Roberts (448 U.S. 56) rule which was overruled by Crawford with respect to testimonial hearsay: is the statement sufficiently reliable?
The Court of Appeal claims that the recent Davis (547 U.S. 813) case from the US Supremes wipes Smith out. WRONG. Where the hearsay really is nontestimonial, due process should require that the hearsay meet a reliability requirement.
People v. Garcia; 2008 DJ DAR 16901; DJ, 11/17/08; C/A 4th