People v. Hopson CA4/1

Filed 6/24/15 P. v. Hopson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D066684

Plaintiff and Respondent,

v. (Super. Ct. No. RIF1105594)

RUTHETTA LOIS HOPSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside, Jeffrey J. Prevost,

Judge. Affirmed.

Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Andrew S. Mestman and Sean M.

Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Ruthetta Hopson of first degree murder

of her housemate, Laverna Brown. (Pen. Code, § 187, subd. (a).) The jury also found
true the allegations that Hopson killed Brown by means of lying in wait, and in the course

of a robbery. (Pen. Code, § 190.2, subds. (a)(15) & (a)(17)(A).) Hopson was sentenced

to life imprisonment without the possibility of parole.

On appeal, Hopson argues for reversal of the judgment on two separate alleged

violations of her rights under the confrontation clause of the Sixth Amendment.

(Crawford v. Washington (2004) 541 U.S. 36 (Crawford).) As a criminal defendant, she

had the right to cross-examine the witnesses who testified against her. (Id. at pp. 51, 54.)

Testimonial statements are "statements, made with some formality, which, viewed

objectively, are for the primary purpose of establishing and proving facts for possible use

in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14 (Cage); italics

omitted.) Confrontation clause analysis extends to the use of a declarant's out-of-court

statements at trial, and the high court has explained that it is the "primary purpose of

creating an out-of-court substitute for trial testimony" that implicates the confrontation

clause. (Michigan v. Bryant (2011) 562 U.S. 344, 358 (Bryant).)

Even testimonial statements may be admissible for purposes other than

establishing the truth of the matter asserted in them. (Tennessee v. Street (1985) 471 U.S.

409, 414 (Street); Crawford, supra, 541 U.S. at p. 59, fn. 9.) "[I]f a statement is not

offered for its truth, or is nontestimonial in character, the confrontation clause is not a bar

to admission." (People v. Blacksher (2011) 52 Cal. 4th 769, 813 (Blacksher).)

We apply these principles to Hopson's claims. At her trial, evidence about out-of-

court statements made by her codefendant, Julius Thomas, after he was arrested and

interviewed by detectives, was presented on two theories. By the time of trial, the

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codefendant had committed suicide, and Hopson never had the opportunity to cross-

examine him. The detectives testified at her trial that he (1) led them to the location of

the murder weapon, and (2) made statements that conflicted with the version of the

killing offered by Hopson during her testimony in her defense, as to which of the two was

the planner and in charge during the execution of the plan.

Hopson's appeal first presents the issue of whether her confrontation rights were

violated when one of the detectives testified, in the prosecution's case-in-chief, about

"implied statements" the codefendant made to him when showing the detectives things,

including the location where the weapon was later found.

Hopson next argues confrontation principles were violated when, during her cross-

examination and the rebuttal case, the codefendant's out-of-court statements were brought

in to attack the credibility of her testimony about how the offense was committed (i.e.,

she testified he had forced her to participate in the killings and hide the evidence), but she

had no opportunity to confront him. (See Evid. Code,1 § 1202 [credibility of hearsay

declarant, a basis of this ruling].) Hopson further claims there was cumulative error, in

that she might have decided not to testify, if not for the initial error in admitting the

weapon testimony, and it in turn led to error violating her rights to confrontation of her

codefendant.

As we will show, we accept for purposes of analysis that the codefendant's out-of-

court statements during his police interview (interrogation) are testimonial in nature.

1 All further statutory references are to the Evidence Code unless noted.
3
(Davis v. Washington (2006) 547 U.S. 813, 822 (Davis) [statements are testimonial in

circumstances objectively indicating there is no ongoing emergency and the primary

purpose of an interrogation "is to establish or prove past events potentially relevant to a

criminal prosecution"].) However, this record shows they were offered for two

nonhearsay purposes. First, his statements and conduct were offered to show their effect

on the listeners and thus to explain how their investigation proceeded, when they went to

the place where he left the weapon. (People v. Livingston (2012) 53 Cal.4th 1145, 1162

(Livingston).)

Next, the codefendant's out-of-court "actual statements," as reported by the

detective in rebuttal, were admissible for the nonhearsay purpose of impeaching Hopson's

account at trial of the codefendant's threats and controlling conduct, before, during and

after the killing. Hopson's testimony introduced the concept of what the codefendant told

her out of court, and she placed an immediate issue into dispute, her credibility about the

influence on her of his character and actions during these events. (Street, supra, 471 U.S.

409, 414 [no violation of confrontation rights occurred at a trial, when evidence about a

nontestifying codefendant's confession was admitted for a nonhearsay purpose, on the

immediate issue of coerced confessions].)

Under these unusual circumstances, we conclude Hopson "opened the door" to

these permissible nonhearsay uses at trial, of the reported, testimonial out-of-court

statements by her codefendant, and the evidence was not introduced in violation of the

protections of the confrontation clause. (Street, supra, 471 U.S. 409, 414; United States

v. Cruz-Diaz (1st Cir. 2008) 550 F.3d 169, 176-177 [a defendant's trial strategy may open

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the door to admission of a statement with confrontation clause implications].) We affirm

the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Events of October 28-29, 2011

In October 2011, Hopson, a 39-year-old registered nursing assistant, was renting a

room at a house owned by Darcy Timm. Hopson worked off and on for a staffing service

and had recently taken out loans to cover her $500 monthly rental payments.

Hopson met Julius Thomas, a bus driver, in 2006 and from 2008 to 2011, they had

an intimate dating relationship. He weighed over 300 lbs. and she called him her teddy

bear. Thomas normally called Hopson when he got off work and then came to her house

in the middle of the night for a while.

Hopson wanted to move out of Timm's house and made plans to rent an apartment

for $995 per month. On her rental application, she placed her monthly income at $3,000.

Hopson's credit history was poor and the apartment manager (Cunningham) told her an

$800 security deposit was required by October 29. As of the end of October, Hopson had

$16.05 in her checking account and $17.11 in savings. At the end of September she had

$19.49 in her checking account and $2.12 in savings. In August, the balances were also

low.

Brown, a 66-year-old registered nurse who worked for Riverside County Hospital,

was also a renter at Timm's house. Brown often worked 12-hour shifts and always paid

her rent. On the morning of October 28, Brown planned to fly to Georgia to visit family.

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The evening of October 27, she was packing her suitcase and had some items written on

"to-do" lists, such as packing shoes and going to the bank.

Around 5:15 a.m. on October 28, Timm got up and went out to the garage to do

laundry. She kept tools in the garage, including a machete that her son owned, and saw

its empty sheath on a workbench, although the machete was not there. Timm went back

into the house and in the kitchen she noticed that a large knife in her butcher block was

missing. As Timm was writing a note to Hopson to ask about the missing machete and

knife, Hopson arrived at the side door. She told Timm she was going to be spending the

day with her boyfriend, Thomas, and was there to change her clothes. When Timm asked

her about the knife and machete, she said she did not know. Hopson mentioned to Timm

that she had just washed away some spilled Coca Cola, so Timm should be careful not to

slip in the area at the side of the house. Hopson and Thomas left in his car.

Timm returned to the garage and saw that an indoor/outdoor rug had been moved

against the garage door. She took Hopson's trash can, containing a Coca Cola box,

outside to empty it into a larger can. In the larger can, she found a blanket soaked in

blood, and she saw blood and globs of flesh on the ground. Timm called 911, and an

officer arrived. They found no signs of a break in or forced entry. Timm left Hopson a

voicemail asking about the machete and the knife, but did not mention the bloody

blanket.

About two and a half hours later, Hopson returned Timm's call and told her that

she had moved some things around in the garage, but not the machete or knife. Hopson

said she had noticed a blond, long haired, homeless looking man wearing a backpack and

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walking around the neighborhood. Timm had not seen any homeless people in her

neighborhood for at least 30 years.

When Timm came home from work early, Hopson was in the garage, and told her

she had again washed the side of the house to remove the spilled Coca Cola. Timm asked

her where some missing cleaning solution was, but Hopson said she did not know.

Later that day, Timm got a call from Brown's daughter, who was worried because

Brown was not on the flight she had booked. Hopson was staying close to Timm at the

time, but Timm did not want her to overhear the conversation or to learn that Timm was

getting suspicious of her actions. Hopson asked her what she was doing that weekend,

which Timm thought was strange, and she noticed Hopson had her hands behind her

back, which scared her. Timm explained her plans and went outside, for the purpose of

staying visible to the neighbors.

Thomas came over to Timm's house and left with Hopson so he could drive her to

work. Timm went back into the house and called 911 again. She told the dispatcher that

she was "scared to death," because she thought Hopson was involved in Brown's

disappearance. She said Hopson looked "kind of disheveled" that morning and she must

have "made up" the story about the homeless man with the backpack. Officer Jayson

Jahanian arrived and interviewed Timm, who seemed to have been crying.

Investigators came to Timm's house around midnight and found blood on the

sidewalk and in the trash can, along with two pairs of rubber gloves in the can. It looked

like the wires on a motion activated light on the side of the house had been detached.

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 Later, Officer Jahanian went to the hospital where Hopson was working and asked

her about Brown's disappearance. She seemed nervous but seemed to be "trying to

remain calm." He thought she was lying when she said she didn't know anything about

Brown. She told him that Thomas, her boyfriend and "a big, snuggly teddy bear," had

come over to visit her that morning around 2:30 a.m. She said they went outside to talk,

then came home around 4:30 a.m., when she noticed that Brown was moving about in her

room and "getting ready for w—to go."

Next, Hopson told Officer Jahanian that she and Thomas left to go out for

breakfast at McDonald's, and she then ran some errands. When she got home around

6:00 or 6:30 am, Brown's van was already gone. She said she asked Thomas to meet her

at the check cashing businesses, since he lived nearby. She had called the apartment

manager and asked her to reduce the security deposit so she could move into the new

place, but the answer was no. Hopson unsuccessfully applied for a cash advance from a

business, "Check Into Cash." She got a $300 advance from "Check N Go" around noon.

During the interview, Officer Jahanian told Hopson there was blood on the

sidewalk at Timm's house. Hopson responded that she had not seen any, although she did

hose down the ground at the side of the house to clean up some spilled soda. She told

him she saw a "weird guy" with "scraggly, black hair underneath a hat" walking around

the neighborhood that week. She agreed to go to the police station for an interview after

work, around 2:00 a.m., and gave the officer Thomas's phone number, although she did

not know his address.

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 After the officer left, Hopson's coworker asked her if she was okay. Hopson was

acting upset and said she was unable to reach her "honey" by phone. She told the

coworker that Brown, who "was" a nice lady, was missing.

When Hopson arrived at the police station, she was willing to talk in a videotaped

interview. She was not under arrest. She told Officers Richard Wheeler and Rick Cobb

that she had a good relationship with Brown, and the last time she saw her was when

Brown came home from work that night and started to pack. Hopson then went to sleep

until Thomas called her and came over around 2:00 a.m. She mentioned that she loved

and adored him. When they went outside, they noticed a "weird" guy with scraggly

blond hair and a backpack walking around the neighborhood. She and Thomas went to a

nearby park for about an hour. When they came back to the house through the front door,

Hopson saw a light on in Brown's room and assumed she was home and awake. Thomas

took Hopson to McDonald's for breakfast that morning.

When Hopson came home, she ran into Timm. Hopson then went out the back

door, spilling a can of Coca Cola she took from the garage. She sprayed the ground with

a hose before leaving with Thomas. They drove around for a while and then Thomas

dropped her off near a bus stop, where she went shopping for paint and furniture for her

new apartment. She was not sure where Thomas went.

Hopson explained to the officers that when she returned home from her errands

around 2:30 that afternoon, she used cleaning solution and a broom to spray and scrub the

Coca Cola she had spilled earlier. When the officers told her there was blood in the exact

same location as the soda spill, she acted surprised, since she thought she was cleaning up

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soda, not blood. She started to pause in her responses and seemed to get quieter than

before. When the officers mentioned she had referred to Brown in the past tense, she said

she did not mean to do so. She told them she did not take the machete or the butcher

knife, and she was not involved with the bloody blanket found in the trash can.

Officers tracked Thomas's cell phone signals and found that as of October 29,

around 3:20 a.m., he was at or near Republic Street in Riverside. Later that day, they

found Brown's van nearby in an empty parking lot. Her body was inside, lying face

down, with a spray bottle lying on her back. Her throat had been cut and it appeared she

had been dragged into the van through the driver's side. Her suitcase containing clothing

and toiletries was in the front passenger's seat, but no shoes, cell phone or purse were

there.

B. Events of November 1-December 15, 2011

Both Hopson and Thomas were arrested. At first, Thomas denied participating in

any killing. In his second interview on November 1, 2011, Thomas broke down and

confessed that he and Hopson had planned the killing, and although he wanted to back

out, she persuaded him to go through with it. He cried and asked the detectives to

apologize for him to Brown's family. The detectives took him out in a marked police car,

and Thomas showed them where he had dumped some bloody clothing, and where he had

thrown the machete into a fenced off canal area. The dumpster had been emptied. It was

dark and nothing could be found. However, the next day, Detective Cobb went to the

canal area and found the machete from Timm's garage. Brown's blood was found on it.

No knife was recovered.

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 Shortly after Hopson was jailed, she talked to family and friends on the phone and

told them that she had seen Thomas in passing, and that he had encouraged her to pray

and told her they would both get through this. She told her son that Thomas said to say

hello to him. She asked her friend to find Thomas's jail address so she could correspond

with him.

Over the next month or two, Hopson sent Thomas notes saying she loved him and

missed him. Later, she sent a note breaking off their relationship. In another letter dated

December 7, 2011, she expressed her continuing love and loyalty and asked him about

statements she heard he had made to the police.

In December 2011, Thomas replied, "Goodbye. Like you said, you won't write no

more. That's fine. You did this, not me . . . . Don't waste my time no more. That's how

you want to be. Well, have a nice life."

On December 15, 2011, Thomas committed suicide in jail. Letters from Hopson

were found in his cell. In her cell, investigators found a post-it note with Thomas's

address on it, crossed out. Underneath his address, she wrote, "My love is gone and I

pray he is in heaven with Jesus. 7/6/81-12/16/11."

C. Trial Proceedings

After Hopson was arrested, a neighbor helped Timm clean out her room. They

found receipts from the evening of October 27, showing that Hopson went shopping and

bought a folding knife and pepper spray for $76.46. The same evening, she bought

clothes at Target in large sizes (including a hooded sweatshirt and sweatpants).

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 DNA testing of the blood on the blanket, on the ground, and in splatters in the

garage and on the house revealed that it belonged to Brown. She had died from a sharp

force injury to her neck, which was cut open down to her spinal cord, severing the carotid

artery, trachea, and esophagus. Such wounds could have been caused by an attack with a

machete or a butcher's knife. Brown did not have any defensive wounds.

The steering wheel of the van yielded traces of Hopson's DNA, as well as

Brown's, but none from Thomas. According to Timm, Brown had sometimes given

Hopson rides to the store, but to Timm's knowledge, Hopson did not drive the van

herself.

Cell phone evidence was presented of the numerous messages and frequent

telephone calls that Hopson exchanged with Thomas between October 27 and 29. On

October 28, between 1:49 a.m. and 2:32 a.m., Thomas called Hopson while going toward

Timm's house. Hopson received his calls in the location of Timm's house. Around

7:42 a.m., Thomas called Hopson from somewhere around the cell tower nearest to where

the machete was found. Around 7:56 a.m., Thomas called Hopson from somewhere

around the cell tower where Brown's van was found.

At trial, Detective Cobb testified about driving around with Thomas after he

confessed, and about going back the next day and finding the machete at the location

Thomas pointed out to him. Cobb did not mention Hopson to the jury in connection with

describing Thomas's acts that showed detectives where he left the machete.

The thrust of Hopson's defense case was her testimony that Thomas forced her to

participate in the robbery and killing, by repeatedly threatening her and her adult son.

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Hopson explained that she never met Thomas's relatives or went to his house, and she

believed he was divorced. At some point, he told her that he had killed someone and

beaten someone else, but she loved him and continued the relationship. Another reason

was that he threatened to harm her if they broke up.

Hopson said that as a bus driver, Thomas was concerned about getting germs from

the public, so she brought him gloves and protective booties. At Thomas's request on

October 27, Hopson bought gifts for his sister, the large size sweatpants outfit he later

wore during the killing. She told Thomas that Brown would be out of town that

weekend, so that they could spend time together without disturbing anyone, since he did

not like to come over if the other women were awake in the house. Hopson had

mentioned to him that Timm kept a machete at her house.

Hopson testified that when she responded to Thomas's telephone call that night by

meeting him in the garage at her house, she was shocked to find Brown lying bloody and

dead. Thomas was wearing the gloves and booties she had given him, and he told

Hopson that when he tried to rob Brown of her travel money, she recognized him and he

killed her with the machete and the butcher knife. After Thomas threatened to kill

Hopson and her son if she did not help him, Hopson cleaned up the blood and helped

Thomas hide Brown's body. At Thomas's direction, Hopson drove Brown's van to a

parking lot to leave it, so it would look like Brown was away from home, as Brown had

planned.

Thomas then picked Hopson up and they went to McDonald's, where Thomas

ordered apple pie and soda, but they didn't eat or drink them. Thomas told Hopson to tell

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the police that a long-haired homeless man must have killed Brown. He told her not to

betray him, because "Snitches will die, and even if you're locked up, they will get to

you."

As they returned to Timm's house, Thomas required Hopson to go into a 7/11 store

to buy Coca Cola for use in cleaning up the blood. When she was done cleaning, she put

the clothes she was wearing in bags in Thomas's car. Eventually, Thomas threw away the

bags of clothes, the machete, and the knife. Although Hopson bought a small knife and

pepper spray during the week of Brown's killing, she did so for purposes of self-defense.

When she wrote letters to Thomas while they were both in jail, she wanted to stay on

good terms so he would not have her son harmed.

Because of the nature of Hopson's confrontation clause arguments, which must be

analyzed within their complete factual context, we defer setting forth further details of

her testimony on cross-examination and in response to the rebuttal case, until our

discussion of the merits of her claims. (Pts. III-IV, post.) Although she raised

confrontation clause objections to the detectives' accounts of what Thomas said to them,

she did not request any admonitions from the trial court that the jury should view their

testimony, or her own, for any limited purposes. She clarifies in her reply brief that she is

not claiming error on the basis of a lack of such limiting instructions, nor does she claim

prosecutorial misconduct in the introduction of evidence.

At the close of testimony, the jury was instructed in standard language, including

how to evaluate prior statements made by a witness or by the defendant. After argument,

the jurors deliberated and returned verdicts convicting Hopson of first degree murder and

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the special circumstances as charged (lying in wait). She was sentenced to life

imprisonment without the possibility of parole, and filed this appeal.

II

SCOPE OF REQUIRED CONFRONTATION ANALYSIS
OF "TESTIMONIAL" STATEMENTS

In Crawford, supra, 541 U.S. 36, the court acknowledged the confrontation clause

"does not bar the use of testimonial statements for purposes other than establishing the

truth of the matter asserted." (Id. at p. 59, fn. 9.) As Crawford was interpreted in Cage,

supra, 40 Cal.4th 965, 984, "the confrontation clause is concerned solely with hearsay

statements that are testimonial."2 The focus of analysis under the clause must be on

" 'witnesses' against the accused--in other words, those who 'bear testimony.' "

(Crawford, supra, at p. 51.) By contrast, when an out-of-court statement is not offered

for the truth of its contents, or the statement is "nontestimonial in character, the

confrontation clause is not a bar to admission." (Blacksher, supra, 52 Cal.4th at p. 813.)

In Bryant, supra, 562 U.S. at page 355, the Supreme Court interpreted Davis,

supra, 547 U.S. 813 as making it clear "that not all those questioned by the police are

witnesses and not all 'interrogations by law enforcement officers,' [citation] are subject to

the Confrontation Clause." (Bryant, supra, at p. 355; see Crawford, supra, 541 U.S. at

2 " 'Hearsay evidence' is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated." (§ 1200, subd. (a).) It should be noted that the California Supreme Court has
two confrontation clause cases before it, concerning the use of gang expert testimony that
relies on testimonial hearsay. (People v. Archuleta, review granted May 19, 2014,
S218640; People v. Sanchez, review granted May 14, 2014, S216681.) They do not
directly concern the issues in this case.
15
p. 53.) Nevertheless, we think it is clear on this record that Thomas's statements to

detectives, created during a postarrest, more or less formalized interview, must be

characterized as testimonial in nature. This approach will obviate one of the usual

components of confrontation clause analysis, which would otherwise seek to determine

the "primary purpose of creating an out-of-court substitute for trial testimony," as it

implicates testimonial status. (Blacksher, supra, 52 Cal. 4th 769, 813; Bryant, supra, at

p. 358.)

Specifically, the parties have not identified any factors that could have affected

whether Thomas's statements were "testimonial" in nature or not (e.g., an ongoing

emergency). (Cf. Bryant, supra, 562 U.S. at p. 358 ["[T]here may be other

circumstances, aside from ongoing emergencies, when a statement is not procured with a

primary purpose of creating an out-of-court substitute for trial testimony," italics

omitted]; id. at p. 362, fn. 9 [discussing various hearsay exceptions that cover statements

that "by their nature [were] made for a purpose other than for use in a prosecution"].) On

this record, we are able to conclude that Thomas's statements were testimonial under the

usual definitions.

We are reminded by Crawford, supra, 541 U.S. 36, that the confrontation clause

"does not bar the use of testimonial statements for purposes other than establishing the

truth of the matter asserted." (Id. at p. 59, fn. 9.) As we will show, the record does not

support either of Hopson's arguments that an out-of-court statement was offered against

her "for the truth of its contents." (Blacksher, supra, 52 Cal. 4th 769, 813.) Thus, it is

unnecessary to carry out any extensive hearsay analysis, and we shall discuss hearsay

16
issues only in connection with the trial court's (erroneous) ruling under section 1202,

pertaining to the credibility of Thomas, as a "hearsay declarant."3 (Pt. IV, post.)

Accordingly, we focus not upon the purpose of Thomas in creating his statements

in a role as a "hearsay declarant," but instead, upon the purpose of the prosecution at trial

in offering evidence of those statements, by way of the testimony of the detectives. Both

as to (1) Detective Cobb's version of Thomas's statements and how they led Cobb to

discover the discarded weapon, and as to (2) Detective Wheeler's report of Thomas's

statements about why the killing occurred, we address whether they fell within the scope

of nonhearsay evidence, and if they were therefore outside the concerns and protections

of the confrontation clause.

As will be shown, our inquiry need not reach the component of confrontation

clause analysis that applies a harmless error standard. (Livingston, supra, 53 Cal.4th

1145, 1158-1159 [confrontation clause violations are subject to federal harmless error

analysis].)

3 Section 1202 provides in relevant part: "Evidence of a statement or other conduct
by a declarant that is inconsistent with a statement by such declarant received in evidence
as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the
declarant though he is not given and has not had an opportunity to explain or to deny
such inconsistent statement or other conduct."
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 III

EVIDENCE LEADING TO LOCATION OF WEAPON; THOMAS'S OUT-OF-COURT
STATEMENTS AND CONDUCT, AS PART OF PROSECUTOR'S CASE-IN-CHIEF

A. Introduction to Issues

Evidence was presented to show that Thomas participated with Hopson in

attempting to rob Brown of any travel money she might have obtained for her plan to

leave town, but Brown was killed in the attempt. After Thomas and Hopson were

arrested, he confessed to detectives and led them to the location of one of the weapons

used in the killing, a machete. Six weeks later, he committed suicide in jail.

Before trial, the court limited the scope of Detective Cobb's testimony to allow

him to describe the search for the machete, but not to reference Hopson or implicate her

as a participant. She objected to the admission of Thomas's statements for any purpose

other than to show how the machete was found. The court said that if the prosecutor

wanted to introduce Thomas's statements for impeachment purposes, the matter would be

addressed at a sidebar.

Detective Cobb testified in the prosecution's case-in-chief about how they later

found the machete. The prosecutor did not play any recording of Thomas's statements for

the jury.

Hopson contends the trial court committed prejudicial error when it admitted

evidence at trial of these out-of-court statements, testimonial in nature, as "indirect"

statements that harmed her defense. Hopson thus argues her rights under the

confrontation clause were violated, because Thomas was unavailable as a witness and she

18
could not cross-examine him. She further contends the machete was erroneously

admitted into evidence, because officers would not have found the weapon if not for

Thomas' out-of-court statements to them.

B. Authority and Analysis

Hopson characterizes her claim as one of first impression in California, as follows:

"Whether evidence of a suspect's implied statements to the police can constitute evidence

of a testimonial statement which cannot be used at trial against a criminal defendant in

the absence of an opportunity by that defendant to cross-examine the person who made

those implied statements." However, she cannot properly characterize Thomas's conduct

in leading officers to the weapon as "implied statements" about where it could be found,

because in this instance, his statements and conduct were not offered for their truth. " 'An

implied statement may be inferred from an express statement whenever it is reasonable to

conclude: (1) that declarant in fact intended to make such implied statement, or (2) that a

recipient of declarant's express statement would reasonably believe that declarant

intended by his express statement to make the implied statement.' " (People v. Garcia

(2008) 168 Cal.App.4th 261, 289; italics omitted.) Here, however, Thomas's ability to

lead detectives to the location of the machete was offered not to show the truth that he

knew where it was, but to show how the investigation proceeded.

In Livingston, supra, 53 Cal.4th 1145, 1162, the court identified and applied this

" ' "important category of nonhearsay evidence—evidence of a declarant's statement that

is offered to prove that the statement imparted certain information to the hearer and that

the hearer, believing such information to be true, acted in conformity with that belief.

19
The statement is not hearsay, since it is the hearer's reaction to the statement that is the

relevant fact sought to be proved, not the truth of the matter asserted in the statement." ' "

Hopson relies on cases such as United States v. Meises (1st Cir. 2011) 645 F.3d 5,

for the concept that a prosecutor cannot evade the limitations of the confrontation clause

"by weaving an unavailable declarant's statements into another witness's testimony by

implication." (Id. at p. 22.) In that case, the prosecutor asked an officer whether a

nontestifying codefendant had "said anything during his interview that changed the

targets of the investigation and prompted the defendants' arrests." (Id. at p. 21.) When

the officer said yes, the court found that such testimony "plainly told the jurors" that the

codefendant said the defendant was guilty. (Ibid.) This was an indirect or backdoor way

of bringing in the truth of those statements of an accusation of guilt. (Id. at pp. 22-23.)

In Hopson's case, Detective Cobb testified about going for a ride with Thomas

while Thomas showed detectives where to find things involved in the offense to which he

was confessing. At that point, the assignment of guilt between Thomas or Hopson was

not being discussed. The evidence was not offered to show that Thomas was speaking

the truth about how the weapon got there. (United States v. Meises, supra, 645 F.3d at p.

21.)

Similarly, in Ocampo v. Vail (9th Cir. 2011) 649 F.3d 1098, the Court of Appeals

rejected a prosecutor's attempt to bring in a description of the "critical substance" of

testimonial statements inculpating the defendant, even though those statements were not

introduced verbatim. (Id. at p. 1113.) The court said it was impermissible for a detective

to "digest" or "outline" or "summarize" out-of-court statements and then present them for

20
their truth, such as when telling the jury that a nontestifying witness had identified the

defendant as present at the shooting. (Id. at p. 1109.) The defendant had said he was not

present. The prosecutor then argued the nontestifying witness had corroborated the

statements of a testifying witness, who had identified the defendant as the perpetrator.

(Id. at pp. 1111-1112.) This violated confrontation principles. (Id. at p. 1113; see

Minnesota v. Swaney (Minn. 2010) 787 N.W.2d 541, 552-555 [agent's questioning of

defendant's wife about items photographed at a crime scene, where items had been

discussed out of court by defendant and wife in a recorded conversation, could not

properly be used to imply that wife's statements were testimonial and established that

defendant was at the scene].)

In Hopson's case, Cobb's account of the interview with Thomas was admitted into

evidence not for the truth that Thomas put the weapon there, but to show the course of the

investigation. In People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224-1225 (Mitchell),

portions of a police dispatch tape were deemed to be nontestimonial evidence that was

not subject to Crawford restrictions, because they were introduced for purposes other

than establishing the truth of the matter asserted. In Mitchell, much of the dispatch tape

was not offered by the prosecution to establish the truth of the matter asserted in the

recorded statements, but "to show how the pursuit unfolded and to describe the police

officers' actions." (Mitchell, supra, at p. 1224.) Moreover, the voices heard on the

dispatch tape were mainly those of those officers who testified at trial and were subject to

cross-examination. "Accordingly, admission of their statements on the tape did not

violate the confrontation clause or the principles announced in Crawford." (Mitchell,

21
supra, at p. 1224.) The truth of the matters discussed on the tape "was immaterial to any

contested matter in the trial." (Ibid.; italics added.) Also in Mitchell, any confrontation

clause error in admission of the dispatch tape was harmless. (Id. at pp. 1224-1225.)

In Livingston, supra, 53 Cal.4th 1145, the nonhearsay purpose of the out-of-court

statement was to explain certain conduct (why rival gang members ran across the street

away from the defendant's car, which had someone in it shooting at them). It was

relevant to an issue in the case, the location of the defendant and his easily recognizable

car at the time of the shooting offense, as that affected the actions of the rival gang

member who spoke. (Id. at p. 1161.) Introduction of that out-of-court statement was not

done in violation of confrontation clause restrictions, because it was brought in for

nonhearsay purposes, to show a response. (Id. at pp. 1162-1164; see People v. Scalzi

(1981) 126 Cal.App.3d 901, 907; People v. Samuels (2005) 36 Cal.4th 96, 122 [out-of-

court statement properly admitted to explain witness's subsequent actions]; Cage, supra,

40 Cal.4th at p. 975, fn. 6.)

The interview with Thomas, as he led detectives to the place where the weapon

was found, was not brought before the jury as a hearsay statement that was being offered

for the truth of the matter asserted. (§ 1200, subd. (a).) It was not a contested matter at

trial whether Thomas knew the location of the weapon or if he was telling the truth about

it. (See Mitchell, supra, 131 Cal.App.4th 1210, 1224-1225.) Similarly, in United States

v. Wright (8th Cir. 2014) 739 F.3d 1160, 1170-1171, the testimony of one investigating

officer about being told by another, "Come here[, w]e've got something," was properly

offered to show its effect on the listening officer, that it caused him to enter a room, and it

22
was not improperly offered or admitted to show whether he found anything there. (See

United States v. Mitchell (9th Cir. 2007) 502 F.3d 931, 966 [testimony by police officer,

about information from a witness regarding a parked car, was offered as a basis for police

action, not for its truth].)

Here, Cobb's testimony about the driving portion of the investigation was offered

to show that statements from Thomas had an effect upon him as an investigator. (United

States v. Dupree (2d Cir. 2013) 706 F.3d 131, 136.) The officers acted based on

information they received from Thomas, that enabled them to locate the machete. These

events were brought in for nonhearsay purposes that did not violate Hopson's

confrontation clause rights, and there was no evidentiary error in this respect. (Cage,

supra, 40 Cal.4th at p. 975, fn. 6.)

IV

ADMISSIBILITY OF "ACTUAL STATEMENTS" BY THOMAS, AS DETECTIVE
WHEELER REPORTED THEM IN REBUTTAL; NO CUMULATIVE ERROR

A. Arguments; Section 1202

Hopson contends the trial court violated her confrontation clause protections when

it admitted evidence at trial, "actual" out-of-court statements by Thomas, as reported to

the jury by Detective Wheeler during the prosecution's rebuttal case. Wheeler testified

about the verbal statements Thomas made after his arrest and while being interviewed.

At that point, Thomas was remorseful and told detectives that it was Hopson who

planned the robbery-murder and persuaded him to participate in it, and that she was the

leader in cleaning up the scene and hiding the evidence. The trial court relied on section

23
1202 (impeachment of a hearsay declarant) to allow the detective to recount what

Thomas said to the jury. Hopson claims this was prejudicial error under Crawford,

supra, 541 U.S. 36, because she never had an opportunity to cross-examine Thomas.

At the outset of trial, the court said that if the prosecutor wanted to introduce

Thomas's statements for impeachment purposes, the matter would be addressed at a

sidebar. Toward the close of Hopson's testimony, the prosecutor argued that in rebuttal,

he should be allowed to bring in impeachment of hearsay declarations that came in

through her testimony, on state of mind. (§ 1250 [declarant's state of mind hearsay

exception]; § 1202 [credibility of hearsay declarant].)4 The trial court ruled that the

prosecutor could have Detective Wheeler testify about the statements Thomas made to

detectives, when Thomas confessed his participation but said that Hopson was the driving

force who was always in charge of creating, pursuing, and executing the plan. The court

relied on section 1202, saying that the prior inconsistent statements would be admissible

for that limited purpose.

On rebuttal, Detective Wheeler testified that Thomas told officers during his

November 1 interview that Hopson wanted to forcibly take any travel money Brown

would have on hand, but he tried to talk her out of it. However, he gave in when Hopson

told him that Brown would be an "easy target." As arranged, Hopson brought Brown out

to the garage, where Thomas hit her with the machete. Hopson held a bloody knife in her

4 The prosecutor seem to be arguing the applicability of section 1250 (existing
mental or physical state), but the court reporter transcribed it as section 1215 (no such
section).
24
hand as she leaned over Brown's body. Afterward, Hopson discouraged Thomas from

calling the police, said they should get rid of the body, and that Coca Cola could be used

to clean up and hide blood residue, as she had learned on television. When they went to

McDonald's afterward, Thomas said Hopson was able to eat a snack, but he was too upset

to do so.

Hopson now asserts her rights to confrontation of witnesses were violated in this

way, through the use of Thomas's "actual" statements as reported at trial, after his death

(as contrasted to what she calls his "implied" statements discussed above, e.g., where to

find the machete). According to Hopson, the trial court erred in applying section 1202,

which allows prior inconsistent statements of a hearsay declarant to be allowed for

impeachment purposes.

It is not clear from the briefs whether Hopson is arguing that Thomas's reported

statements were being erroneously used to impeach (a) her own defense testimony about

her own role, or (b) to impeach her version of what Thomas said to her during the

offenses, about how he was actually the prime mover in the killing and he repeatedly

threatened Hopson not to tell, or she or her son would be harmed. Hopson claims that her

testimony about why she kept quiet until after he died, and only then told the jury about

his threats to her, was unfairly undermined by testimonial statements by Thomas, who

could never be cross-examined.

It is also unclear from the respondent's brief whether the Attorney General is

assuming that the rebuttal testimony affected the credibility of Hopson as the defendant,

or Thomas as the declarant. For example, respondent contends that the admission of

25
Thomas's statements to Detective Wheeler was not a violation of the confrontation

clause, "as his statements were admissible for the nonhearsay purpose of impeaching his

statements previously admitted through appellant's testimony." (Italics added.) Strictly

speaking, Hopson did not obtain admission of the truth of Thomas's "threatening"

statements, simply by the way she reported them. (§ 1200, subd. (a).) Instead, she

presented her own testimony about how the dynamics of their relationship affected the

commission of the offense.

The trial court's ruling did not properly apply section 1202, because Thomas's

statements, as a declarant, were not received in evidence as hearsay offered for the truth

of the statements, pursuant to section 1200, subdivision (a). Section 1202 applies to

impeaching a hearsay declarant by his or her own inconsistent statements, whether the

declarant was ever given an opportunity to explain or deny the inconsistency, or not.

(People v. Curl (2009) 46 Cal.4th 339, 361-362.) " 'The purpose of section 1202 is to

assure fairness to the party against whom hearsay evidence is admitted without an

opportunity for cross-examination,' " of the hearsay declarant. (Curl, supra, at p. 362,

quoting People v. Corella (2004) 122 Cal.App.4th 461, 470.) That is not our case.

Read in context, the apparent purpose of the rebuttal testimony from Detective

Wheeler was to attack the credibility of Hopson as a testifying defendant, with regard to

her fear of Thomas as supposedly motivating her to cooperate with him in covering up

the killing of Brown. According to Detective Wheeler, Thomas's statements to him

blamed Hopson, which was markedly different from how Hopson described the events in

court.

26
 Whatever the stated basis of the trial court's ruling, we are required to resolve,

consistent with confrontation clause principles, whether it was proper for the court to

admit Detective Wheeler's testimony about Thomas telling detectives that Hopson

persuaded him to attack Brown for purposes of robbing her, and she took the leadership

role in concealing evidence of the killing. We consider whether Thomas's statements

were admissible for the nonhearsay purpose of impeaching Hopson's credibility, on her

claim that she was coerced into doing what she did by her fear of Thomas. She brought

into issue her own credibility about her relationship with Thomas during the offense, as

follows.

B. Additional Facts from Cross-Examination and Rebuttal Testimony

During cross-examination, Hopson agreed that when she was interviewed, she told

detectives that Thomas was her "big snuggly teddy bear," and never said he had

threatened her. She remembered telling them about the "weird guy" she saw walking

around the neighborhood that week, but was confused if she said his hair was blond or

black. She knew that Brown made money as a registered nurse, and assumed she would

be taking money with her on her planned trip. Hopson described preparing to move into

her new apartment the day after Brown was killed, by applying for payday loans.

In her redirect testimony, Hopson said she heard in jail that Thomas had made a

statement that accused her of planning Brown's robbery and killing. She said he was

wrong in telling detectives that she told him Brown would have some travel money and

they should rob her. She denied telling Thomas to hide in the garage so she could bring

Brown out there. Rather, she only cleaned up at his direction and helped get rid of the

27
body because she was afraid of him. She said he was mistaken in telling detectives that

she ate the food ordered at McDonald's without a problem, after Brown was dead.

As previously summarized in the factual statement, ante, in rebuttal, Detective

Wheeler testified about his interview with Thomas, when Thomas cried, blamed Hopson

for the plan, and told him he now wanted to make it right for Brown's family. When

Wheeler talked to Hopson, she was dry eyed and did not seem concerned about Brown.

Brown's missing wallet and purse were never found.

In rebuttal testimony from Thomas's fiancée, she said she did not know he had a

girlfriend that he visited while she was at work. She and Thomas had a four-year-old

daughter together, and she did not know him to be a violent person and did not want his

memory tarnished.

The prosecutor's investigator looked for Thomas's criminal history, but found he

had no past convictions or arrests. The investigator had a transcript of Hopson's jail

telephone conversation that occurred a few days after her arrest, with her son and her best

friend. Hopson told her friend that she ran into Thomas, who told her to be strong and

said that they would "get through it" if they prayed. Hopson wanted to write him a letter

and asked for his jail address. She told her son that Thomas said, "Hi."

After Thomas killed himself, the investigator searched his cell, finding Hopson's

letters to him dated December 7 and 10, 2011. In them, Hopson and Thomas were

corresponding about information that her attorney had read to her, that Thomas had made

a statement on November 1, 2011 about the case and their roles in it. Among other

things, Hopson wrote, "The things that were said in the statement shocked me, and I

28
could not believe you would say those things about me. It caused me to be confused and

have doubts, because you said you would never hurt me, and what she said you said cut

me to the core of my being. . . . [¶] . . . Please don't leave me or forsake me. I promise

you with all that I am that I have never betrayed you. . . . My love has never changed and

never will, even if yours has."

In a letter from Thomas found in Hopson's cell after his death, he denied making

the statement she was talking about. The letter told her, "But now you say I have

forsaken you. Okay, that's fine. You want to talk about lives destroyed. You're a

hypocrite. It's funny how all the same things you said I have said, they were said to me

as well. But that does not matter now. You act as though you're the only one here.

Uhm, hello, I am too. [¶] Well, you have said enough. Don't write to me, because at this

point I don't really care. It's like whatever, you always believed what you heard. It's your

naiveness [sic] that's playing with you again. [¶] Goodbye. Like you said, you won't

write no more. That's fine. You did this, not me. . . . Don't waste my time no more.

That's how you want to be. Well, have a nice life."

After the investigator testified about the letter Thomas wrote to her, saying "you

did this, not me," Hopson testified on further redirect examination that Thomas must have

been referring to her letter in which she broke up with him. She did not interpret his

letter as accusing her of killing Brown.

During closing arguments, the prosecutor started off by saying Hopson had made

the plan for Thomas to lie in wait for Brown in the garage, so Hopson could bring her out

29
there. Brown had evidently been interrupted during her preparations for her trip and the

items on her to do lists had not all been crossed off.

The gist of the defense attorney's closing argument was that Thomas called the

shots in their relationship and throughout this offense, leading Hopson to cooperate with

him out of fear. In reply, the prosecutor argued that Hopson was lying about threats to

herself and her son. Instead, her actions showed that she planned to kill the "easy target"

she had identified, but it appeared from the to do lists that Brown had not yet been to the

bank to get money. Although the prosecutor talked about Thomas's confession to the

detectives as showing that Thomas had a conscience and wanted to help Brown's family,

his argument mainly dwelled on the lies that he believed Hopson had told, "all the way

through this case."

C. Authority

In Street, supra, 471 U.S. 409, the United States Supreme Court found no

violation of confrontation rights had occurred at a trial in which the defendant testified

that a confession he had made to a detective was coerced, such that he was forced to say

the same thing as his accomplice had said in his own confession (both made out of court).

The accomplice was not a testifying witness. In rebuttal, the prosecutor was allowed to

call the detective as a witness, to read the accomplice's confession to the jury and then to

explain the differences between the two confessions. The high court said that the purpose

of the rebuttal testimony was not impermissible, and that the introduction of the

accomplice's confession was not being done to prove the truth of what was said in it.

Instead, the confession evidence had a nonhearsay purpose, to rebut the defendant's

30
testimony that his own confession was coercively derived from the other one. (Id. at pp.

415-417.)

Moreover, in Street, supra, 471 U.S. 409, the defendant had the opportunity to

cross-examine the law enforcement witness who presented that information against him,

and there was no deprivation of his right to cross-examine the accomplice, since the

accomplice's confession was not being presented for its truth. The jury was properly

given the opportunity to compare the two confessions, to decide whether the defendant

was telling the truth about his defense of "the immediate issue of coercion" of his

confession. (Id. at p. 416.) The trial judge had appropriately instructed the jury to limit

its use of the evidence in a manner consistent with the confrontation clause.

In a concurring opinion in Street, supra, 471 U.S. 409, two Justices said that the

out-of-court confession was admissible for nonhearsay purposes and was proper rebuttal

to the defense testimony, and "it is important to note that [defendant] created the need to

admit the statement by pressing the defense that his confession was a coerced imitation of

[the accomplice's] out-of-court confession." For those reasons, the confrontation clause

did not bar the evidence. (Id. at pp. 417-418 (conc. opn. of Brennan J. & Marshall, J.).)

In Crawford, supra, 541 U.S. at page 59, footnote 9, the court relied on Street as support

for its conclusion that evidence admitted for a nonhearsay purpose does not have

confrontation clause implications.5

5 Compare Williams v. Illinois (2012) ___ U.S. ___ [132 S.Ct. 2221, 2255-2256,
2259–2260 (conc. opn. of Thomas, J.), in which Street, supra, 471 U.S. at page 417, was
distinguished on how to apply the proposition that the confrontation clause does not bar
31
 In United States v. Cruz-Diaz, supra, 550 F.3d 169, the court ruled that the

admission into evidence of an out-of-court confession of a codefendant did not violate a

defendant's confrontation clause rights, because the statement was admitted to explain

why the criminal investigation was terminated, and not for the truth of the confession.

(Id. at p. 177.) In its analysis, the appellate court ruled that one of the defendants had

opened the door to testimony about the out-of-court statement, from the law enforcement

authorities to whom it was made, by arguing the investigation was inadequate. (Id. at

p. 175.) The out-of-court statement was offered to explain why the agents had stopped

investigating, because of the confession they obtained that led them to conclude they had

the right suspects. Thus, the defendant's "trial strategy opened the door to the statement's

admission." (Id. at p. 176.) Within the scope of Street, supra, 471 U.S. 409, the trial

court had properly admitted that out-of-court statement, "not to prove the truth of the

matter asserted but to rebut [the codefendant's] attempt to cast doubt on the integrity of

the government's investigatory efforts. The district court instructed the jury as to the

limited nature of the statement's admission. And the government's interest in introducing

the substance of the confession, rather than a more sanitized narrative, was both

legitimate and strong." (Cruz-Diaz, supra, at pp. 179-180.)

In People v. Reid (2012) 971 N.E. 2d 353 (Reid), the highest court in New York

enumerated federal and state court opinions that have held, " 'a defendant can open the

the use of out-of-court statements for purposes other than their truth. Justice Thomas said
the views in Street "did not accept that nonhearsay label at face value," but it "thoroughly
examined the use of the out-of-court confession and the efficacy of a limiting instruction
before concluding that the Confrontation Clause was satisfied '[i]n this context.' "
(Williams, supra, at p. 2257; conc. opn. of Thomas, J.).)
32
door to the admission of evidence otherwise barred by the Confrontation Clause.' " (Id. at

pp. 356-357, citing, e.g., United States v. Cruz-Diaz, supra, 550 F.3d 169, 178; United

States v. Lopez-Medina (10th Cir. 2010) 596 F.3d 716, 733; United States v. Holmes (8th

Cir. 2010) 620 F.3d 836, 843-844; United States v. Acosta (5th Cir. 2007) 475 F.3d 677,

683-684; cf. United States v. Cromer (6th Cir. 2004) 389 F.3d 662, 679 [confrontation

rights are not erased when a defendant opens the door to admission of a testimonial out-

of-court statement].) The court in Reid said it agreed with that emerging consensus, that

a defense strategy or tactic can open the door to admitting evidence that could otherwise

be prohibited by the confrontation clause. (Reid, supra, at p. 357.)

In Reid, the court explained its reasoning: "If evidence barred under the

Confrontation Clause were inadmissible irrespective of a defendant's actions at trial, then

a defendant could attempt to delude a jury 'by selectively revealing only those details of a

testimonial statement that are potentially helpful to the defense, while concealing from

the jury other details that would tend to explain the portions introduced and place them in

context' [citation]. A defendant could do so with the secure knowledge that the concealed

parts would not be admissible under the Confrontation Clause. To avoid such unfairness

and to preserve the truth-seeking goals of our courts [citation], we hold that the admission

of testimony that violates the Confrontation Clause may be proper if the defendant

opened the door to its admission." (Reid, supra, 971 N.E. 2d 353, 357.)

D. Analysis

We examine whether the statements Thomas made about Hopson's participation in

the killing, as given to the detectives after his arrest and thus deemed to be testimonial

33
under those circumstances, were properly admitted for reasons other than establishing the

truth of the contents of his statements. Hopson's defense strategy put at issue her

credibility as to why she cooperated with Thomas after he had carried out the killing

(because of her fear of him). Her cross-examination was conducted by the prosecutor in

an extremely argumentative manner, in which he emphasized her previously expressed

love for Thomas, her "teddy bear," as contrasted to her recent testimony that he told her

he had killed somebody else and was threatening her and her son, even from the grave,

such as through "somebody with long scraggly blond hair." The prosecutor asked her

why she had waited 15 months after Thomas died to accuse him of threatening her, and

when she said she did not know how to tell the truth about it, he said he believed her

when he heard her say she did not know how to tell the truth, because of her lies to Timm

and her coworker.

Defense counsel made a few objections that the prosecutor was being

argumentative, when the prosecutor asked Hopson about her "very nice little dance" with

her defense attorney in presenting "each piece of damning evidence" and explaining it.

Defense counsel objected when the prosecutor scolded Hopson for trying to control him

during her cross-examination. In redirect testimony, defense counsel asked Hopson

about the police reports in which Thomas accused her of planning the event. The

prosecutor objected on hearsay grounds, which were overruled.

In rebuttal, Detective Wheeler described how Thomas confessed to detectives

about how the killing occurred. When the prosecutor asked whether Thomas knew he

was taking detectives to the evidence that would convict him, an objection was sustained,

34
but the prosecutor rephrased to ask whether Thomas knew he was taking detectives to

evidence that would be used in investigating the killing of Brown (answer, yes).

During her own testimony, Hopson brought in multiple layers of hearsay. In

general, evidentiary rules were very loosely applied at this trial and few restrictions were

observed by either side, or by the trial court. Even so, to the extent Thomas's out-of court

statements contradicted Hopson's account, they could have been offered to show not their

truth but their falsity. (People v. Hinton (2006) 37 Cal.4th 839, 893 (Hinton).) "Indeed,

the statements were offered for their falsity to rebut defendant's claim that he had lied to

the police . . . and thus [showed] that defendant's stated reason for lying to the police was

untrue." (Ibid.)

To the extent Hopson failed to challenge any conclusions about the manner in

which she "opened the door" to the admission of Thomas's statements through Detective

Wheeler's testimony, we could easily find she has forfeited the issue. (Hinton, supra, 37

Cal.4th at p. 893; Reid, supra, 971 N.E. 2d at pp. 356-357.) She testified in layers of

multiple hearsay and brought Thomas's character and actions into issue as her key

defense point. She should not be heard to complain on appeal that the prosecution should

not have been able to produce evidence that rebutted her version of the offense. She was

allowed to cross-examine Detective Wheeler and did so. She did not request any limiting

instructions or admonitions on the use of his evidence, and does not complain of any such

omission on appeal. CALCRIM Nos. 318, 358 and 362 nevertheless were used to

educate the jury about how to evaluate prior statements of witnesses or the defendant, and

consciousness of a defendant's guilt from false statements.

35
 Within the scope of Street, supra, 471 U.S. 409, the jury was properly given the

opportunity to compare the two versions by the two participants about what happened in

the garage the night that Brown was killed, to decide whether Hopson was telling the

truth about "the immediate issue of coercion," which was her theory of defense. (Id. at

p. 416.) Wheeler's account of Thomas's out-of-court confession was admissible for

nonhearsay purposes, in rebuttal to the defense testimony. Hopson "created the need to

admit the statement by pressing the defense" (id. at p. 417 (conc. opn. of Brennan J. &

Marshall, J.)) that she was coerced into hiding the evidence, at least. How she responded

to Thomas's asserted threats was an issue in the case that was fair game for rebuttal. His

statements were not presented for their truth, but to show that her version was not

believable, when considered with the rest of the evidence. (Ibid.) Her confrontation

clause protections were not violated.

We also agree with respondent that Thomas' statements were admissible for the

nonhearsay purpose of explaining why Hopson apparently continued to stay friends with

Thomas up until the weeks before his death, consistently claiming a homeless man must

have done the killing, and why she did not start to blame Thomas for planning the killing

until she became aware he had made statements against her. She then changed her tactics

to accommodate his version of what happened. This set of circumstances and her own

testimony properly invoked the duty of the court to make rulings that would promote

"truth-seeking." (See Reid, supra, 971 N.E.2d 353, 357.) Even if we assume there were

a confrontation clause problem posed by Thomas's reported testimonial statements, in the

nature of "bleeding over" from impeachment into substantive evidence about the identity

36
of the killer, we conclude the rebuttal testimony from Detective Wheeler was properly

admitted because Hopson "opened the door to its admission." (Ibid.)

Because we have found no constitutional error as claimed in both of Hopson's

arguments, no cumulative error occurred.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

37