# People v. Fudge

> California Supreme Court · June 30, 1994 · 7 Cal. 4th 1075

URL: https://www.frixlaw.com/law-library/cases/9792649

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. KEITH TYRONE FUDGE, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** June 30, 1994
- **Citations:** 7 Cal. 4th 1075; 31 Cal. Rptr. 2d 321; 94 Daily Journal DAR 9375; 875 P.2d 36; 94 Cal. Daily Op. Serv. 5121; 1994 Cal. LEXIS 3316
- **Precedential status:** Published
- **Opinion:** Concurring in part by Mosk
- **Judges:** Lucas, Mosk, Kennard
- **Cited by:** 348 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9792649

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792649. Public record. Not legal advice.