People v. Smith

Page 155

263 Cal.Rptr. 155

214 Cal.App.3d 904

The PEOPLE, Plaintiff and Respondent, v. Lynnard Arvant SMITH, Defendant and Appellant.

Crim. No. B037394.

Court of Appeal, Second District, Division 3, California.

Oct. 13, 1989.

Review Denied Jan. 25, 1990.

George L. Schraer, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Edward T. Fogel, Jr., William T. Harter, Cindy M. Lopez, Deputy Attys. Gen., for plaintiff and respondent.

INTRODUCTION

ARABIAN, Associate Justice.

John of Gaunt:

"O! but they say the tongues of dying men

"Enforce attention like deep harmony:

"Where words are scarce, they are seldom spent in vain

"For they breathe truth that breathe their words in pain." ¹

The dying declaration stands as one of the earliest recognized exceptions to the rule excluding most hearsay evidence from trial proceedings, and the foundation for this exception is deeply rooted in policy considerations of human philosophy and psychology. Yet, since well before the enactment of the Evidence Code in 1967, appellate courts have not addressed the question of what instruction, if any, the trial court should provide the jury in its evaluation of such evidence. In this case, although the court did not misstate the law in its sua sponte pronouncement, we conclude that the jury should not have received any instruction on the point. However, we find the error did not result in a miscarriage of justice, and affirm defendant's conviction for first degree murder (Pen.Code, § 187).

FACTUAL AND PROCEDURAL BACKGROUND

The victim, Miles Weary, received fatal injuries shortly after 11:00 p.m. on February 11, 1986. He had just finished putting gas in his car at a station on the corner of Normandie Avenue and Century Boulevard. Two friends, Bruce Browder and Gregory Haney, were with him. As Weary was about to drive onto Normandie, a black Chevrolet Blazer with tinted windows containing two or three individuals pulled up next to the passenger side of his vehicle and honked its horn.

At that point, Browder saw the driver's window of the Blazer come down "pretty quick" and the driver point a gun in Weary's direction. The assailant fired as many as six shots in rapid succession and drove off. Melvin Salguero, an attendant at the station who was standing in a nearby cashier booth, identified defendant as the person driving the Blazer.

Los Angeles Deputy Sheriff Robert Rifkin arrived at the scene moments after the shooting. He was familiar with the victim from previous contacts and spoke with him as he lay in the street. Rifkin had prior training as a paramedic and "told Miles that he was shot and hurt badly, and that he was dying." When Rifkin asked who shot him, Weary replied, " 'Spodie did it, ... Spodie from 90th Hoovers.' " Further testimony disclosed that the victim and the defendant were members of rival street gangs and that defendant was known as "Spodie."

Bridgette Lewis testified the two men had prior contact the evening before the shooting. She had been with Weary about 11:30 p.m. as they were driving on 99th Street. While they were at a stop sign, defendant drove alongside from the opposite direction in a black Blazer. Weary was unfamiliar with defendant, but Lewis identified him as "Spodie" from "Nine-Oh," referring to the street gang 90th Hoover Crips. The victim was about to pull away, but another car blocked him; and defendant came over and began striking him through the driver's window. When Weary also got out of his car, the two men exchanged several blows. Weary was forced to abandon his car on the street when one of defendant's companions took the keys from his ignition. Defendant's fingerprints were later found on the driver's side of the victim's car.

Weary suffered two gunshot wounds, either of which would have been fatal. The coroner found two .22-caliber bullets in his body, which appeared to have entered from the right side. Another bullet fired from the same gun was found in the passenger door of the victim's car.

Several days after the killing, defendant was interviewed by Deputy Sheriff Isaac Aguilar. He initially stated he knew nothing except that someone had been killed; and he denied recently being in the area of 99th Street and Normandie Avenue or knowing the victim. When Aguilar stated he had information to the contrary, defendant admitted knowing the victim and fighting with him the night before the shooting in the area of 99th Street and Budlong.

Defendant offered an alibi defense. According to Melanie Battle and her mother Viola Rodriguez, defendant had been at the Rodriguez house at 96th Street and Western Avenue from 4:00 a.m. February 11 until at least 3:00 or 4:00 p.m. February 12 for safety reasons following an unrelated shooting of Battle's friend Kelly Mozier. Mark Cofield, a friend of defendant, owned a black Blazer and had made inculpatory statements regarding the killing to a mutual friend and gang member.

ISSUES PRESENTED

Defendant raises the following issues on appeal:

(1) Whether the trial court erred by instructing on the victim's dying declaration;

(2) Whether the court properly admitted Deputy Rifkin's opinion as to the veracity of the dying declaration;

(3) Whether the court should not have excluded hearsay evidence of Gregory Haney's identification of Mark Cofield as the assailant; and

(4) Whether substantial evidence supports the jury's finding of premeditation and deliberation.

DISCUSSION

I. Dying Declaration Instruction

Over defendant's objection, the court gave the following instruction: "A declaration made by a person about to die has a substantial guarantee of trustworthiness. 'The very solemnity of the circumstances under which the declaration in extremis is made is very justly considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice.' "

To evaluate the propriety of the instruction we undertake a brief review of the genesis of the law. ² "Of the doctrines which authorize the admission of special classes of out-of-court statements as exceptions to the hearsay rule, the doctrine relating to dying declarations is the most mystical in its theory and traditionally the most arbitrary in its limitations. The notion of the special likelihood of truthfulness of deathbed statements was widespread, of course, long before the recognition of a general rule against hearsay in the early seventeen hundreds. It is natural enough, then, that about as soon as we find a hearsay rule we also find a recognized exception for dying declarations." (McCormick 3d, § 281, footnote omitted; see 5 Wigmore, Evidence (Chadbourn rev.ed 1974) § 1430; see also Thurston v. Fritz (1914) 91 Kan. 468-474, 138 P. 625-627.) Wigmore further explains "the nature of the circumstantial guarantee of trustworthiness": "It is separable ... into three elements. (1) The declarant, being at the point of death 'must lose the use of all deceit'--in Shakespeare's phrase. There is no longer any temporal self-serving purpose to be furthered. (2) If a belief exists in a punishment soon to be inflicted by a Higher Power upon human ill-doing, the fear of this punishment will outweigh any possible motive for deception, and will even counterbalance the inclination to gratify a possible spirit of revenge. (3) Even without such a belief, there is a natural and instinctive awe at the approach of an unknown future--a physical revulsion common to all men, irresistible, and independent of theological belief." ³ (5 Wigmore, Evidence (Chadbourn rev.ed 1974) § 1443.)

In the early case of Rex v. Woodcock (1789) 1 Leach Cr.C. 500, 502, Lord Chief Baron Eyre articulated the rationale thusly: "[T]hat they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath in a Court of justice." Although the exception has been considerably narrowed in its application over the last two centuries, ⁴ the rationale remains viable; and courts continue to rely upon it in discussing issues related to instructions or admissibility of such evidence. (See, e.g., People v. Thomson (1905) 145 Cal. 717, 723, 79 P. 435; People v. Sanchez (1864) 24 Cal. 17, 23-24; People v. Profumo (1913) 23 Cal.App. 376, 378, 138 P. 109; People v. Dallen (1913) 21 Cal.App. 770, 780-781, 132 P. 1064.) Indeed, the instruction before us derives directly from the language of Rex v. Woodcock, supra.

Despite the substantial guarantee of trustworthiness underlying this exception, courts have warned against uncritical acceptance. "This species of testimony should always be received with the greatest of caution, and too much care cannot be observed by the Court in scrutinizing the primary facts upon which its admissibility is grounded. No person is entirely exempt from a disposition to excuse and justify his own conduct, or to inflict vengeance upon one at whose hands he has suffered a grievous wrong; and in the eye of the law this proclivity is presumed, in cases like the present, to be overcome and silenced only by the presence of almost immediate death." (People v. Sanchez, supra, 24 Cal. at p. 24; People v. Lawrence (1863) 21 Cal. 368, 372; see also People v. Thomson, supra, 145 Cal. at p. 723, 79 P. 435; but see People v. Dallen, supra, 21 Cal.App. at pp. 780-781, 132 P. 1064.) Concomitantly, although the declarant is not a "witness" in the statutory sense (People v. Thomson, supra, 145 Cal. at p. 723, 79 P. 435; see also Evid.Code, §§ 240, 710), a dying declaration is subject to the same credibility evaluations by which in-court testimony is tested. (See People v. Thomson, supra, 145 Cal. at p. 723, 79 P. 435; ...