Opinion

People v. Fudge

  • 7 Cal. 4th 1075
  • 31 Cal. Rptr. 2d 321
  • 94 Daily Journal DAR 9375
  • 875 P.2d 36
  • 94 Cal. Daily Op. Serv. 5121
Court
California Supreme Court
Filed
Jun 30, 1994
Status
Published
Author
Mosk
On the bench
Lucas, Mosk, Kennard
Cited by
348 cases
Authority
More cited than 11.2%

finding no error in substituting an alternate for a discharged juror where the issue was deemed waived by the defendant's failure to object to the juror substitution, even though the jury had already reached guilty verdicts on three of five counts

How later courts described this case

  • finding no error in substituting an alternate for a discharged juror where the issue was deemed waived by the defendant's failure to object to the juror substitution, even though the jury had already reached guilty verdicts on three of five counts
  • stating that Green does not require the admission of unreliable evidence
  • may not exclude veniremembers solely on religious grounds

Written by the judges who cited it.

The opinion

MOSK, J., Concurring and Dissenting.

I concur in the judgment of guilt and death eligibility, but dissent from the judgment of death.

As to guilt and death eligibility, I have found no error or other defect that requires reversal. In my view, however, the trial court clearly erred by *1129 excluding as inadmissible hearsay what was in fact not hearsay at all. I will not merely “assumfe]” that it did. (Maj. opn., ante, at p. 1103.) Such out-of-court statements as defendant sought to elicit were not hearsay because they were not “offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) The question of prejudice is somewhat close. “The evidence against defendant fell largely, although not exclusively, into two major groups: eyewitness identification and inmate informant evidence.” (Maj. opn., ante, at p. 1101.) The latter cannot be deemed “overwhelming”— certainly not if we consider the source. But neither can the former. Even though “they were familiar with” him, “some of the witnesses did not initially identify defendant as the shooter . . . .” (Id. at p. 1111, fn. 9.) Nevertheless, in light of the evidence in its entirety, including especially defendant’s jail cell graffiti “confession,” I simply cannot conclude there is a reasonable probability that the error affected the outcome. (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].)

As to death, however, the matter is different. In violation of the Eighth Amendment to the United States Constitution, the trial court erroneously excluded the testimony of Warden Lawrence Wilson and Chaplain Byron Eshelman. Like Justice Kennard, whose concurring and dissenting opinion I join, “I cannot conclude, beyond a reasonable doubt, that the jury’s verdict was unaffected by the trial court’s erroneous exclusion of that testimony.” (Dis. opn. of Kennard, J., post, at p. 1135, italics in original].)

Accordingly, I would reverse the judgment of death.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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