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People v. Mayfield1/2/1997
nt ("Dennis?"), defendant immediately responded. Because defendant was able to hear the entire conversation and to reply to any untrue or unfair accusations against him, Haverstick's statements that defendant had shot him and that defendant was then threatening him with the pistol ("he's got a pistol right between my eyes right now") were admissible as adoptive admissions. (See People v. Medina, (supra) , 51 Cal. 3d 870, 889-891.) Haverstick's statements describing his present mental and physical condition (for example, "I am about to pass out" and "I am numb from the waist down") were admissible under the hearsay exception for statements describing the declarant's present mental and physical condition. The remaining statements by Haverstick, including his pleas for help, were not hearsay because they were not admitted for the truth of the matter stated.
We also reject defendant's additional contention that the trial court should have excluded the evidence on the ground that its probative value was outweighed by the risk of undue prejudice. (See Evid. Code, § 352.) Because the defense did not object on this ground at trial, the issue is not preserved for review. (See id., § 353, subd. (a).)
D. Haverstick Preliminary Hearing Testimony
Over defense objection, the trial court admitted in evidence most of the preliminary hearing testimony of William Haverstick, excluding only those portions of the testimony to which the defense had asserted a valid and contemporaneous objection. Defendant contends that the trial court erred in so ruling and thereby denied him his federal constitutional right of confrontation (U.S. Const., 6th Amend.), because the witness's inability to remember certain details precluded effective cross-examination and because the defense did not have adequate time to prepare for the cross-examination. Alternatively, defendant contends that the trial court erred in overruling defense objections to specific portions of the preliminary hearing testimony.
1. The Witness's Memory
Although the testimony of a witness at an earlier proceeding is hearsay if offered to prove the truth of the matters to which the witness testified, it is admissible under the prior testimony exception to the hearsay rule if (1) the witness is unavailable, and (2) the party against whom the testimony is offered was a party to the earlier proceeding and either offered it in evidence at the earlier proceeding or "had the right and opportunity to cross-examine" the witness "with an interest and motive similar to that which [the party] has at the [current proceeding]." (Evid. Code, § 1291, subd. (a)(2).) When these requirements are satisfied, admitting former testimony in evidence does not violate a defendant's right of confrontation under the federal Constitution. ( California v. Green (1970) 399 U.S. 149, 165-166 [26 L. Ed. 2d 489, 501-502, 90 S. Ct. 1930]; see People v. Cudjo, (supra) , 6 Cal. 4th 585, 618.)
Defendant concedes that Haverstick, because he had died, was unavailable as a witness at defendant's trial. But defendant argues that he did not have an adequate opportunity to cross-examine Haverstick at the preliminary hearing because Haverstick at that time was unable to remember some important facts.
The right of confrontation does not protect against "testimony that is marred by forgetfulness, confusion, or evasion." ( Delaware v. Fensterer (1985) 474 U.S. 15, 22 [88 L. Ed. 2d 15, 21, 106 S. Ct. 292]; accord, U. S. v. Owens (1988) 484 U.S. 554, 557-559 [98 L. Ed. 2d 951, 956-958, 108 S. Ct. 838].) Having carefully reviewed Haverstick's preliminary hearing testimony, we find that despite his gunshot wound and the attendant loss of blood,
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