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People v. Kilday6/30/2004
it is not surprising that other government officers performed the investigative functions now associated primarily with the police." (Id. at p. ___ [124 S.Ct. at p. 1365].) Thus, statements obtained during police interrogations are testimonial not because an interrogation is formal, structured, or recorded, but because police interrogations serve an investigative (and potentially prosecutorial) function.
The statements Kiernan gave to Detective Randall in her hotel room following Kilday's arrest were obtained in circumstances much like the "interrogation" involved in Crawford. As in that case, Kiernan's statements were knowingly given, recorded, and the product of structured questioning. (See Crawford, supra, ___ U.S. at p. ___, fn. ___ [124 S.Ct. at p. 1365, fn. 4].) The only difference is that Kiernan was the victim, while the wife in Crawford was a suspect. However, Crawford does not suggest that only suspects' testimonial statements implicate Sixth Amendment concerns. The confrontation clause is concerned with the "production of testimonial evidence," which can come from suspects, victims, and third party witnesses. (Id. at p. ___ [124 S.Ct. at p. 1365].) Kiernan's statements to Randall in the hotel room are "testimonial" hearsay.
We also conclude that Kiernan's statements to the police officers in the lobby of the Sequoia Hotel before Kilday's arrest are "testimonial." The hotel manager told his daughter to call the police after seeing the burns on Kiernan's leg. Upon arrival, the police encountered Kiernan, who was frightened and upset, and had visible injuries. Regardless of whether the subsequent unrecorded, informal questioning in the lobby constituted an "interrogation," it was part of a police investigation aimed at obtaining testimonial evidence. Contrary to the People's contention, the informality of the questioning makes no difference to our analysis.
For these reasons, we hold that the admission of Kiernan's statements to Officers Cirina, Federico, and Randall under section 1370 violated the confrontation clause. We do not decide that section 1370 is facially unconstitutional.
IV. Harmless Error
With respect to the convictions for torture, inflicting corporal injury upon a cohabitant, and making criminal threats, we must determine whether the error of admitting Kiernan's statements was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see also Sisavath, supra, 118 Cal.App.4th 1396 [applying Chapman standard].) The Chapman standard requires the People " `to prove beyond a reasonable doubt that the error complained of did not contribute to the [result] obtained.' [Citation.]" (People v. Neal (2003) 31 Cal.4th 63, 86.) " `To say that an error did not contribute to the [result] is . . . to find that error unimportant in relation to everything else the [factfinder] considered on the issue in question, as revealed in the record.' [Citation.]" (Ibid.)
A. The Counts Related to the October 10 Incident
Count three (torture) and count four (infliction of corporal injury on a cohabitant) related to Kilday's alleged act of burning Kiernan with an iron on October 10, 2001. To prove torture, the People were required to prove beyond a reasonable doubt that Kilday inflicted great bodily injury upon Kiernan "with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. . . . " (Pen. Code, § 206.) To prove infliction of injury on a cohabitant, the People were required to prove that Kilday willfully inflicted corporal injury resulting in a traumatic condition. (Pen. Code, § 273.5 subd. (a).)
The People cont
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