Some Hearsay Stuff on Habeas

In re Bell, No. S151362 (Cal. Jun. 8, 2017)

A convicted capital defendant petitioned the Supreme Court for habeas relief due to alleged jury misconduct in connection with his conviction. The Court ordered the superior court to appoint a referee to conduct an evidentiary hearing to get to the bottom of what happened. After the evidentiary hearing, the referee found that the jury misconduct claim was unproven an thus that petitioner was not entitled to relief. Petitioner appealed that ruling back to the Supreme Court. In the process of affirming, the Court addresses a number of evidentiary issues that are of general applicability in civil cases. 

The petition included two juror declarations, each from a juror who was supposedly holding out for a life sentence, but who later changed her mind. In one, Juror #1 said that Juror #2 told her she had consulted with her husband, who counseled her to change her vote to death. Juror #2’s declaration essentially said that she didn’t remember much of the deliberations. In particular, she did not recall speaking with her husband. 

First, at the evidentiary hearing, #2 apparently had a slightly better memory. Instead of repeating her declaration’s statement that she did not remember talking to her husband, she said, more or less, that she remembered that she didn’t talk to him. The referee refused to let the declaration in as a prior inconsistent statement under Evidence Code § 1235, finding that it was not materially inconsistent with the live testimony. 

The Supreme Court agrees. The later testimony was more definite than but not fundamentally inconsistent with the statement in the declaration. The court notes that it is not dealing with a situation where the witness originally gave a flat-out “I don’t recall,” only to have a substantive recollection somewhere down the road. The difference between “I don’t remember that happening,” and “I vaguely remember that didn’t happen” is just not very significant. 

Similarly, an earlier statement by #2’s husband about what #2 might have said was correctly excluded notwithstanding § 1235. Both husband’s early statement and his testimony were so conditional and vague that they lacked enough substance to be contradictory. 

Nor did #1’s declaration about what she remembered #2 saying come in over a hearsay objection. Although Petitioner claimed past recollection recorded under § 1237, the declaration was signed in 2009 and the conversation occurred in 1993, which is hardly a contemporaneous recording of observed events. 

Affirmed.