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People v. Mayfield1/2/1997
s fired after defendant had acquired possession of Sergeant Wolfley's gun. ("Basically the officer confronted him with the gun. He pressed him, and he took it.") But it was inconsistent with the prosecution's proposed scenario to the extent it suggested that the fatal shot may have been fired at close range during a second hand-to-hand struggle as Sergeant Wolfley attempted to retake the gun. ("The officer tried to take it back, and that's when the shot was fired.") On balance, the prosecution may reasonably have concluded that the disadvantages outweighed the advantages.
The calculus changed after the defense had presented its case, which included defendant's testimony that the gun had discharged accidentally while defendant struggled to take it away from Sergeant Wolfley or at least to prevent Sergeant Wolfley from using it against him. After presentation of this evidence, the prosecution could reasonably conclude that the Roy Mayfield statement would be useful for impeachment because it contradicted defendant's testimony that the fatal shot was fired while he was attempting to take the gun from Sergeant Wolfley and not while Sergeant Wolfley was attempting to regain possession.
The trial court did not abuse its discretion when it permitted the prosecution to use the Roy Mayfield statement in rebuttal, even though it was known to the prosecution before trial and could have been used during the prosecution's case-in-chief.
5. Inadmissible Hearsay
Defendant contends that the trial court erred in overruling his hearsay objection to evidence of the Roy Mayfield statement. Specifically, he contends that the hearsay exceptions for prior inconsistent statements (Evid. Code, § 1235) and party admissions (id., § 1220) did not apply. He further contends that this trial court error was of constitutional magnitude, violating his right of confrontation under the Sixth Amendment to the federal Constitution, his right to due process of law under the Fifth and Fourteenth Amendments to the federal Constitution, and his right to a reliable guilt determination in a capital case under the Eighth Amendment to the federal Constitution.
The trial court recognized that the evidence of the Roy Mayfield statement contained two levels of hearsay. On the first level, it was an out-of-court statement by Roy Mayfield (that defendant had in fact made a statement describing the shooting of Sergeant Wolfley in a certain way) offered for the truth of the matter stated. On the second level, it contained an out-of-court statement by defendant (that the shooting of Sergeant Wolfley in fact occurred in a certain way) offered for the truth of the matter stated. The trial court ruled that the evidence was admissible because hearsay exceptions existed for each level of hearsay: the prior inconsistent statement exception for the first level (the statement by Roy Mayfield) and the party admission exception for the second level (the statement by defendant).
Defendant argues that the prior inconsistent statement exception does not apply because the statement was not in fact inconsistent with Roy Mayfield's testimony. He points to Roy Mayfield's testimony during the hearing to determine admissibility (Evid. Code, § 402) in which he admitted making this statement: "rom what I gather there was a struggle over the gun. The gun went off." He concedes that this statement is less detailed than the statement as related by Detective Amicone, but he insists that a statement is not inconsistent merely because it is less detailed.
We are unpersuaded. Roy Mayfield's testimony at the admissibility hearing was inconsistent, as we have noted. But in his testimony before the jury, Roy M
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