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Univ. of South Carolina School of Law

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Friday, April 4, 2008

Bordertown: California Judge Excludes Cellmate Testimony About Jailhouse Confession

A judge in a California murder case has made a seemingly incorrect evidentiary ruling based upon the statement against interest exception to the rule against hearsay.  Roger Clark is currently on trial for allegedly killing Charles Gibson in Sandy Valley, a small desert town on the California-Nevada border, in May 2002.  The prosecution's theory of the case is that Clark shot Gibson with a shotgun in the thigh and buttocks, then drove him away to a remote desert location and set a motor home on fire, leaving Gibson to burn alive inside.  The alleged motive is that Clark believed Gibson was having an affair with his girlfriend Carrie Abrao, who was Gibson's neighbor.

While several witnesses provided essential testimony in the case, one witness who did not was Robert Price, another of Abrao's neighbors, who was in custody awaiting trial on charges of receiving stolen property.  While on the witness stand, he refused to answer most questions about the night that Gibson died eventually invoking his Fifth Amendment right against self-incrimination.  According to Clark, Price invoked this right for good reason; apparently, Price confessed to his cellmate that he killed Gibson.

Defense counsel attempted to call this cellmate to testify about Price's alleged confession, but the attempt was rebuffed by the trial judge.  According to defense investigator Chuck Maine, this testimony was excluded because the judge concluded that Price's alleged statements constituted hearsay.  To me, this ruling seems  erroneous.  Sure, Price's confession was hearsay because it was a statement that was made other than by a witness while testifying at trial and that was offered to prove the truth of the matter stated:  that Price killed Gibson.

But, the confession seems to fit pretty clearly under a hearsay exception.  Pursuant to California Evidence Code Section 1230, "[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the statement unless he believed it to be true."  Obviously, Price's alleged confession that he killed Gibson subjected him to criminal liability for murder such that a reasonable man would not have made the statement unless he believed it to be true.

The only question, then, is whether Price was "unavailable" as a witness?  And clearly, he was.  Under California Evidence Code Section 240(a)(1), a witness is "unavailable" when he is "[e]xempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is relevant."  Here, Price was clearly exempted from testifying based upon the Fifth Amendment right against self-incrimination, which should have allowed for his alleged statement to his cellmate to be admissible. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/04/statement-again.html

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