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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Allen MAXWELL, Defendant and Appellant.

No. A040986.

Decided: April 11, 1989

Pamela L. Harrington, Harrington & Ingram, Forestville, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney, Supervising Deputy Atty. Gen., Christopher J. Wei, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant Jeffrey Allen Maxwell appeals his jury-trial conviction and sentence for assault with intent to commit rape (Pen.Code, § 220), penetration by a foreign object (id., § 289, subd. (a)), false imprisonment (id., § 236) and simple battery (id., § 242).   All four counts arose out of the same incident.   The court imposed an upper prison term of eight years for the foreign-object count, imposing prison and jail terms for the remaining counts but staying their execution pursuant to Penal Code section 654.

Defendant seeks reversal for the trial court's failure to instruct sua sponte on flight and for defense counsel's failure to object, on confrontation grounds, to the admission of an incriminating spontaneous declaration by a witness.   He also seeks resentencing for the court's asserted failure to consider mitigating circumstances.   We will affirm.


The parties have summarized the evidence in detail, and we have reviewed it.   We set out only a brief distillation of that evidence.

All counts arise from an assault that took place at a Santa Rosa apartment complex before dawn on a Saturday morning, January 17, 1987.   Elizabeth O., the victim, is deaf and testified at trial in sign language through an interpreter.

Defendant and some friends were partying at the apartments, where other friends Kathleen Mirich, Maurice Metcalf and Gary Carpenter lived.   He drank beer and may have taken “speed.”   Elizabeth was helping her boyfriend Dennis Wade that morning on his newspaper route.   They were working independently—she in his truck and he in a car—when she drove up to the apartments, parked by a dumpster and got out to make deliveries.

According to Elizabeth, defendant was outside when she drove up.   He motioned to her for a paper, which she did not give him, and he saw her deliver some papers.   When she got back to the truck and opened the door, he pushed her into the cab, got in and, holding her wrists with one hand, managed to start and slightly move the truck before she broke free.   He caught her at the back of the truck, forced her to the ground, pulled her pants down, placed his finger (or fingers) in her vagina and unzipped his pants.   He also struck her in the face, making her nose bleed, and twisted her neck.

Elizabeth yelled out upon being struck and managed at some point to honk the truck's horn.   Two men, one black and one white (tenants Metcalf and Carpenter), came out in response.   Defendant ran, and the black man gave chase but, according to Elizabeth, “couldn't find him.”   The men then brought her to the apartments, where apartment manager Roberta Witbeck gave aid.   Witbeck testified that she was roused by the sound of banging on a downstairs door, looked out and saw Metcalf and the victim, who was bloody and crying, trying to summon help.   Metcalf was very excited, perspiring and breathing hard.   When she asked what was wrong, Metcalf said “that he had chased him [‘Jeff’] for two blocks, couldn't catch him.”  (The manager knew defendant.)   Neither of the rescuers, Metcalf or Carpenter, testified.

Elizabeth, who does not write well in English, wrote down that a man had tried to rape her.   The manager phoned for police, but officers were unable to get a statement until the boyfriend (who was also deaf but could lip read) arrived to act as an interpreter.   Shaken, Elizabeth described the assault and her assailant's clothes and appearance.   Police, misreading Elizabeth's statement, treated the matter as an assault with sexual overtones rather than an attempted rape.   She was not examined medically.   She identified defendant from a photo lineup two days later (and again in court).   There were discrepancies in her statements, attributable in part to communication difficulties.

Defendant testified that he had gone out to get some beer from his car when he approached Elizabeth, not knowing she was deaf, and asked, “Hey, baby, you want to party?”   Unsure of what a hand signal in response meant, he approached again and offered her a can of beer, but she shook her head no.   He then saw a patrol or security car enter the carport and, for reasons that are not clear, ran and jumped over a wall, hid for about 20 minutes and then entered Kathy Mirich's apartment through the balcony.   He learned then of the attack and that the police were looking for him.   He stayed in hiding but left identification papers with Mirich in hopes that she would contact the victim and have her eliminate him as a suspect.   At trial, defendant denied the attack or being chased by anyone and said that he and Metcalf did not like each other.   Mirich testified, partially corroborating defendant's account and explaining that, when she was unable to contact the victim, defendant left for Oregon.



 Defendant claims prejudicial error in the court's failure to give a flight instruction (see CALJIC No. 2.52) as required by Penal Code section 1127c, which states in part:  “In any criminal trial ․ where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows:  [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence.   The weight to which such circumstance is entitled is a matter for the jury to determine.”   Defendant did not request such instruction but urges that the court had a duty to give it on its own motion.   We agree with that part of his contention but reject the idea that reversal is required.

Error occurred.   The usual contention on appeal is that such instruction was erroneously given, ordinarily for asserted lack of evidentiary support, and the claimed harm is that the jury was allowed to draw an unwarranted inference of guilt.  (See, e.g., People v. Crandell (1988) 46 Cal.3d 833, 869–870, 251 Cal.Rptr. 227, 760 P.2d 423;  People v. Williams (1988) 44 Cal.3d 1127, 1144–1145, 245 Cal.Rptr. 635, 751 P.2d 901;  People v. Cowger (1988) 202 Cal.App.3d 1066, 1073–1077, 249 Cal.Rptr. 240.)   Nevertheless, in light of the clear statutory mandate, it has been held that failure to give such instruction sua sponte is error where the facts would support the instruction.  (People v. Roy (1971) 18 Cal.App.3d 537, 551, 95 Cal.Rptr. 884, cert. den. (1972) 405 U.S. 976, 92 S.Ct. 1202, 31 L.Ed.2d 251;  People v. Sheldon (1967) 254 Cal.App.2d 174, 181, 61 Cal.Rptr. 778;  People v. Williams (1960) 179 Cal.App.2d 487, 490–491, 3 Cal.Rptr. 782, cert. den., 364 U.S. 866, 81 S.Ct. 109, 5 L.Ed.2d 88;  People v. McDaniel (1957) 154 Cal.App.2d 475, 486, 316 P.2d 660.)   Evidence on both sides in this case showed that defendant fled, although defendant maintained that it was for reasons other than guilt.   A flight instruction was clearly warranted, and it was error for the court not to give one on its own motion.

It is unclear, on the other hand, how the omission prejudiced defendant.   No case in this state has ever reversed a conviction on this score, and in cases like ours, where there is uncontradicted evidence of flight, courts have held that omitting the instruction was more favorable than harmful to the defendant—on the apparent theory that it would have called the jury's attention to the inference of guilt.  (People v. Roy, supra, 18 Cal.App.3d 537, 543–544, 551, 95 Cal.Rptr. 884;  People v. Sheldon, supra, 254 Cal.App.2d 174, 179, 181, 61 Cal.Rptr. 778;  People v. Williams, supra, 179 Cal.App.2d 487, 491, 3 Cal.Rptr. 782.)   That has been observed even where, as here, the defendant offers an innocent motive for fleeing.  (People v. Sheldon, supra, 254 Cal.App.2d at pp. 179–180, 61 Cal.Rptr. 778.)

Focusing on the instruction's caution that flight “is not sufficient in itself to establish ․ guilt” (Pen.Code, § 1127c), defendant urges that, without the instruction, “the jury may well have believed that they had no choice but to conclude that his flight indicated a guilty conscience” and, hence, “no choice” but to convict.   The claim is unfounded.   Nowhere in the given instructions or in arguments to the jury was it suggested that proof of flight, standing alone, required conviction.   The cautionary language is no doubt meant to reduce any risk inherent in the instruction singling out flight as a basis for inferring guilt, but there is no such risk when the instruction is not given.   Finally, nothing in the record suggests that the jury focused unduly on flight as proof of guilt.   They deliberated about an hour and a half, returning once during that time for clarification about credibility and corroboration of witness testimony.   Thus, we reject defendant's suggestion that the jury, faced with conflicting evidence in certain other regards, placed sole or perhaps undue emphasis on flight evidence in finding guilt.

Defendant has not demonstrated that it is reasonably probable that a more favorable result would have been reached had the instruction been given.   (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  Cal. Const., art. VI, § 13.)


 Over defense objection, the trial court allowed the People to elicit apartment manager Roberta Witbeck's testimony that, upon being roused from her apartment by the sound of the victim and Maurice Metcalf banging on a door downstairs and asking them what was wrong, Metcalf “said that he had chased him [‘Jeff’] for two blocks, couldn't catch him.”   The court ruled the hearsay admissible as an “excited utterance” under Evidence Code section 1240 (hereafter § 1240), which states that evidence of a statement is not made inadmissible by the hearsay rule if it “(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant;  and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”   Defense counsel had argued that the statement did not meet those requirements, but the court was satisfied by a foundation laid during Witbeck's testimony that Metcalf seemed very excited, was perspiring and breathing heavily, and that the victim was bloody and crying.

Defendant does not challenge the ruling on the merits.   He contends, however, that defense counsel rendered ineffective assistance by not objecting on the ground that admitting the hearsay statement violated his confrontation rights as guaranteed by the Sixth Amendment of the federal Constitution and article I, section 15, of the state Constitution.

Defendant bears the burden of proving ineffective assistance of counsel.   He must show that counsel failed to act with reasonable competence and that this failure deprived him of a potentially meritorious defense or, should no such “defense” be involved, that it is reasonably probable that a determination more favorable to him would have resulted without counsel's failings.  (People v. Rich (1988) 45 Cal.3d 1036, 1096, mod. 46 Cal.3d 584b, 248 Cal.Rptr. 510, 755 P.2d 960.)   Defendant fails to meet the first part of this burden, making it unnecessary to consider prejudice.1

Our analysis assumes that federal and state constitutional protections are the same in this context.  (In re Damon H. (1985) 165 Cal.App.3d 471, 477, fn. 6, 211 Cal.Rptr. 623.)

California Court of Appeal cases on this question have concluded that confrontation rights are not violated per se by the admission of spontaneous declarations.   They reason, in essence, that the statement's spontaneity renders it generally reliable, and they have independently determined, on the facts of each case, whether the particular statements did appear trustworthy.   (In re Damon H., supra, 165 Cal.App.3d 471, 477–479, 211 Cal.Rptr. 623;  People v. Jones (1984) 155 Cal.App.3d 653, 662–664, 202 Cal.Rptr. 289;  People v. Orduno (1978) 80 Cal.App.3d 738, 746–748, 145 Cal.Rptr. 806, cert. den. (1979) 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41.)   Those cases also acknowledge United States Supreme Court guidance (Ohio v. Roberts (1980) 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (Roberts );  Dutton v. Evans (1970) 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213) for assessing the reliability of hearsay as against confrontation claims generally.

Defendant acknowledges this body of authority but contends that competent counsel would have argued, based on indications in Roberts, that the Confrontation Clause requires, for spontaneous declarations, a showing of the declarant's “unavailability” (see Evid.Code, § 240) and that the statement bears sufficient “indicia of reliability” beyond mere reliance on the statutory prerequisites being met.2

The latter part of this argument was addressed by our state Supreme Court in People v. Farmer (1989) 47 Cal.3d 888, 254 Cal.Rptr. 508, 765 P.2d 940, where the defendant raised a confrontation claim against the admission of spontaneous declarations (§ 1240) by a murder victim who had radioed for help as she lay dying of stab wounds inflicted by the defendant.   The Supreme Court, noting the federal high court's concerns in Roberts for unavailability and reliability, found the unavailability concern easily satisfied, of course, because the hearsay declarant had died.  (Id., at p. 905, 254 Cal.Rptr. 508, 765 P.2d 940.)   As for reliability, the court used essentially the same analysis used in the Court of Appeal cases just cited, assessing reliability for itself:

“In our assessment of whether indicia of reliability underlie a specific hearsay exception, we essentially determine whether the historical reasons for believing that a particular type of statement is inherently reliable have withstood the test of time.   The spontaneous utterance exception, in general, meets this test.   Where the declarant is truly excited and makes a statement about a concurrently or recently perceived event before having the opportunity to think through the possible consequences of his utterance, it is likely to be a reliable statement.”  (Ibid.)  Noting that the defendant did not challenge that conclusion as a general proposition but only challenged it on the facts of that case, the court reviewed the facts and found sufficient reliability.  (Id., at p. 906, 254 Cal.Rptr. 508, 765 P.2d 940.)

By that analysis, we would have to hold that the facts of this case, too, show sufficient indicia of reliability since the declarant was banging on a door trying to summon help for a bloodied and crying victim, had just been in hot pursuit of the assailant, and was still very much excited, perspiring and out of breath at the time of his statements.

However, post-Roberts authority not mentioned in Farmer and overlooked by the parties herein appears to make that analysis unnecessary and indicates that unavailability is also unnecessary.

The United States Supreme Court held in United States v. Inadi (1986) 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (Inadi ), that the Confrontation Clause does not require a showing of unavailability before hearsay may be admitted under the federal co-conspirator statement exception (Fed. Rules Evid., rule 801(d)(2)(E), 28 U.S.C.).  Roberts, the court cautioned, should not be read as requiring unavailability for all out-of-court statements;  Roberts concerned only those factors bearing on the use of prior testimony in place of live testimony at trial.  (Inadi, at pp. 392–394, 106 S.Ct. at pp. 1125–1126.)   Finding that the benefits did not justify the burdens to be expected from such a requirement as to co-conspirator statements, the court in Inadi declined to impose one.  (Id., at pp. 394–400, 106 S.Ct. at pp. 1126–1129.)   The court reserved judgment on whether the second concern of Roberts, reliability (see fn. 2, ante ), had to be individually examined.  (Id., at p. 391, fn. 3, 106 S.Ct. at p. 1124, fn. 3.)

That question was answered in Bourjaily v. United States (1987) 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144):  “[Roberts ] laid down only a ‘general approach to the problem’ of reconciling hearsay exceptions with the Confrontation Clause․   In fact, Roberts itself limits the requirement that a court make a separate inquiry into the reliability of an out-of-court statement.   Because ‘ “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” ․,’ ․ we concluded in Roberts that no independent inquiry into reliability is required when the evidence ‘falls within a firmly rooted hearsay exception.’  ․ We think that the co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that, under this Court's holding in Roberts, a court need not independently inquire into the reliability of such statements․”  (Id., at p. ––––, 107 S.Ct. at pp. 2782–2783, emphasis added and citations omitted.)

Roberts and Bourjaily have since been held to mean that no independent inquiry into reliability must be made before out-of-court statements are admitted under the likewise firmly-rooted “excited utterance” exception, which concerns us here.  (Puleio v. Vose (1st Cir.1987) 830 F.2d 1197, 1204–1206, cert. den. (1988) 485 U.S. 990, 108 S.Ct. 1297, 99 L.Ed.2d 506.)   A court only needs to satisfy itself that the facts come within the rule.  (Id., at pp. 1206–1207.)   We agree, and in this case not even that is necessary because defendant concedes the point.

As for unavailability, Inadi suggests, and we hold, that the Confrontation Clause does not make unavailability a prerequisite to admitting spontaneous declarations.  (Accord People v. Hughey (1987) 194 Cal.App.3d 1383, 1389–1393, 240 Cal.Rptr. 269.)   In the context of co-conspirator declarants, Inadi found a lack of meaningful benefits in such a rule, and the reasoning employed there also applies here:  “First, if the declarant either is unavailable, or is available and produced by the prosecution, the statements can be introduced anyway.   Thus, [an] unavailability rule cannot be defended as a constitutional ‘better evidence’ rule, because it does not actually serve to exclude anything, unless the prosecution makes the mistake of not producing an otherwise available witness․  [¶ ] Second, an unavailability rule is not likely to produce much testimony that adds anything to the ‘truth-determining process' over and above what would be produced without such a rule․   Presumably only those declarants that neither side believes will be particularly helpful will not [already] have been subpoenaed as witnesses․   If the Government has no desire to call a co-conspirator declarant as a witness, and if the defense has not chosen to subpoena such a declarant, either as a witness favorable to the defense, or as a hostile witness, or for cross-examination ․, then it is difficult to see what, if anything, is gained by a rule that requires the prosecution to make that declarant ‘available.’ ”   (Inadi, supra, 475 U.S. 387, 396–398, 106 S.Ct. 1121, 1127–1128, citations and fns. omitted.)   Balanced against this, Inadi noted significant burdens on the prosecution and court in having every invocation of the hearsay exception preceded by attempts to locate and ensure the continued availability of the declarants—witnesses who might never actually be called.  (Id., at pp. 398–399, 106 S.Ct. at pp. 1128.)   Those burdens are apparent here as well.

We hold that a defendant's confrontation rights under the state and federal Constitutions do not require either (1) a showing of unavailability or (2) an inquiry into the reliability of the out-of-court statement beyond satisfaction of the statutory elements (see § 1240;  People v. Farmer, supra, 47 Cal.3d 888, 901–905, 254 Cal.Rptr. 508, 765 P.2d 940) before spontaneous declarations may be admitted in evidence.  (See also People v. Silva (1988) 45 Cal.3d 604, 625, 247 Cal.Rptr. 573, 754 P.2d 1070 [suggesting, based on Bourjaily and Inadi, that neither reliability nor unavailability need be shown before admitting an implied admission.)

 Because the case law underlying our holding existed at the time of trial in this case, we cannot fault counsel for not objecting on confrontation grounds.   Moreoever, the record is silent about counsel's reason for declining to object on those grounds and leaves room for surmise that it was a reasonable tactical decision.  (People v. Pope, supra, 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859;  see also fn. 1, ante.)   Having failed to persuade the court that the spontaneous declaration exception did not apply, counsel may have felt that forcing the prosecution to call the declarant to the stand posed a greater risk of strengthening, rather than weakening, the prosecution's case.  (Cf. People v. Hughey, supra, 194 Cal.App.3d 1383, 1389, 240 Cal.Rptr. 269.)

Ineffective assistance has not been shown.

III **


The judgment is affirmed.


1.   His prejudice argument is that, had an objection been sustained and the People required to put Metcalf on the stand, cross-examination might have revealed that the witness was mistaken as to whom he had chased, given evidence that it was fairly dark outside and that Metcalf had injected drugs.   This claim seems unduly optimistic.   The victim solidly identified defendant, testified that he fled and testified that Metcalf chased after him, thus corroborating the hearsay.Also, the premise of this argument is that Metcalf could not have been shown to be, in code contemplation, “unavailable” for trial (Evid.Code, § 240), yet all indications in the record (some of them nonevidentiary) are that Metcalf was a transient who had since been evicted and whose present whereabouts were unknown.The record thus casts doubt on prejudice and, while we do not decide the issue, suggests that defense counsel may have thought, as a tactical matter, that trying to show Metcalf to be available was futile, thus defeating any appellate claim of incompetence in this regard.  (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

2.   “The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay.   First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity.   In the usual case ․, the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.  [Citations.]  [¶] The second aspect operates once a witness is shown to be unavailable.   Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’  [Citation.]”  (Roberts, supra, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, fn. omitted.)

FOOTNOTE.   See footnote *, ante.

SMITH, Associate Justice.

KLINE, P.J., and BENSON, J., concur.

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