Evidence Exam Fall 2019

LAW 6330 (4 credits)

Professor Pedro A. Malavet
Fall 2019

Instructions

INSTRUCTIONS AT A GLANCE:

Exam is eighteen (18) pages long; twelve (12) True/False (40%) and one Essay (60%).
True/False is to be answered on the Scantron form not in ExamSoft.
Laptops must be on ExamSoft from the start of the exam.
Essay Length Limit: 18,000 characters all-inclusive, equivalent to ten (10) pages.
No abbreviations or acronyms of any kind, other than FRE and TOMA.
Use proper names. Do not substitute the names persons with generic labels like “appellant” or “defendant”.
No electronics other than ExamSoft laptops. Includes headphones of any kind.
Consult annotated Rule-book only during the exam.
Instructed result only. “Dissents” fail.
Four-hour time limit.
The Office of Student Affairs will hand out, proctor and collect the answers to this examination. You must follow all of their instructions.
Penalty for each minor rules violations, except length: 10% of part points.
Penalty for major violations is failure and referral for discipline.

Before the exam starts, you may read the instructions, AND COUNT TO MAKE SURE THAT YOU HAVE ALL EIGHTEEN (18) PAGES, AND YOU SHOULD WRITE YOUR EXAM NUMBER ON EVERY PAGE. IF YOU WILL USE A LAPTOP DURING THE EXAM, YOU MUST LOG INTO EXAMSOFT AT THE START OF THE TEST. OTHERWISE, DO NOT GO BEYOND PAGE THREE (THE END OF THE INSTRUCTIONS) OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.

EXAMSOFT USERS MUST LOG INTO THE SYSTEM AT THE START OF THE EXAMINATION AND REMAIN IN THE SOFTWARE’S ANSWER-ONLY ENVIRONMENT FOR THE ENTIRE TEST PERIOD.

SHARING THE EXAM PASSSWORD WITH ANYONE OUTSIDE THE EXAM ROOMS OR SHARING YOUR EXAM ID WITH ANYONE ELSE IS A SERIOUS BREACH AND WILL RESULT IN A FAILING GRADE.

COMPLETED EXAMS WILL BE COLLECTED BY THE OFFICE OF STUDENT AFFAIRS. IF YOU FINISH EARLY, PLEASE GO TO THE OFFICE OF STUDENT AFFAIRS TO TURN IN THE COMPLETED EXAM. THE OFFICE OF STUDENT AFFAIRS WILL SEND PERSONNEL TO THE EXAM ROOM TO COLLECT EXAMS AT THE END OF THE EXAMINATION PERIOD.

Open Rules. “Open-Rules” means that you may have with you during the examination your required 2019 Mueller, Kirkpatrick & Richter, Federal Rules of Evidence supplement. No substitutions will be allowed. Your supplements may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplements. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplements shall be in their original condition, no material may be added nor may any material be removed in any way. The supplements must be in their original bound form at the start of and throughout the examination.

Honor/Conduct Code. You are bound by University Student Code of Conduct, the College of Law Honor Code and my rules. You certify compliance with all applicable rules by submitting your examination for grading. Violations of any applicable rule(s), should be reported to me or to pertinent authorities preferably before or during the examination. Serious violations of these rules shall result in a failing grade and in my referring the matter to the Honor Committee or to pertinent college or university conduct authorities. Less serious violations may result in a reduction in your final grade.

Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of twelve (12) True or False questions (Part I), for forty percent (40%) of the exam grade; and one (1) essay problem, for sixty percent (60%) of the exam grade. Please take these weights into account when you design your answer schedule.

Limited Space. All students must answer the True/False section using the Scantron system administered by the Office of Student Affairs. You must answer the essay question in the space provided in the separate answer packet for handwriting or typing, or with your laptop using the ExamSoft template. Do not use bluebooks. While I encourage you to outline the answers before you start to write, do not include scratch paper or any additional material with your completed exam.

Handwriting the Essay Answer. You may opt to handwrite your essay answer using a packet printed for that purpose. You are limited to ONE packet as your writing limit. If you wish me to ignore any part of your answer, simply cross it out and I will ignore it. If you should run out of space because of cross-outs, you may use an equivalent amount of space on the back of the page in the answer packet. ExamSoft users would of course simply delete.

No Pencils. If you handwrite any part of your answer, you must do so using a permanent ink pen, subject to a 10% penalty.

Do Not Un-staple Pages. Do not take the exam apart (except that you may take the answer packet apart if you are using a typewriter). If you do, you MUST RE-STAPLE IT. You must also turn in every page of the examination, not just the ones that you use.

Scratch Paper. You may use blank scratch paper to outline your answers and take notes during the examination. Scratch paper will not be collected.

Electronic Exam Taking. You may take the examination electronically, using specialized software that ensures that you can only use your laptop to write your essay answer. All laptops must log-into the ExamSoft system at the start of the examination and remain in the ExamSoft answer only environment for the entire examination period. Only the essay section may be answered electronically. For the other sections, you must write your answer on the exam itself.

Essay Character Limit: 18,000. Answer space shall be limited to 1800 characters (including spaces and carriage returns) for each blank page in the examination. That is enough for 24 lines of double-spaced text in courier type, size 11 for each page. Since I provide 10 blank pages, the character limit is: 1800 x 10 = 18,000 characters. Each student is responsible for keeping track of answer length. The ExamSoft window constantly displays character count at the bottom of the screen. You may also use the length command to check character length. The penalty for exceeding the character limit will be a deduction from your essay score of a percentage equal to the percentage by which you exceeded the character limit. I will also not award points for discussion beyond the length limit.

NO OTHER ELECTRONIC DEVICE MAY BE USED DURING THE EXAM. Other than your laptop, you may not use any other electronic device during the exam. That includes, but is not limited to, cellphones, tablets, music players, headsets, smart-watches, etc.

Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer. “Dissents” fail.

Exam Review. You are welcome to ask to see your marked exam after the start of the spring semester and I will have my assistant provide it to you (because we are required to archive the exams, you must examine it in the faculty support office). However, if you wish to discuss the exam with me, that type of exam review will start after I post the feedback memorandum on the course website and Canvas page on Thursday, February 6, 2020. Instructions for the review process and the dates when I will be available for it will be included in the memorandum.

You must stop work four (4) hours after THE SIGNAL TO START. Completed examinations must be turned in to The office of student Affairs.

Exam Accommodation. If you have received an accommodation that requires variation from these instructions, you must follow the instructions provided by the Office of Student Affairs. Exam accommodations must be handled through the Office of Student Affairs in order to maintain the anonymity of the grading process as well as to ensure that university policies and resources are properly applied to each individual situation. While the Office of Student Affairs may consult with me as necessary and as they deem advisable, we must all ensure that accommodation policies are properly and fully applied while at the same time the anonymous grading of the exam mandated by Levin College of Law rules is maintained.

GOOD LUCK!

GENERAL INSTRUCTIONS FOR PART I

Select the best answer to the question presented. In this section, do not look for “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented, viewed in the context of the federal rules of evidence and related doctrines and caselaw as we discussed them in class. You are bound by the restyled version of the Federal Rules of Evidence that became effective December 1, 2011, as amended.No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate word or letter that you select as your response.

Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.

Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in the restyled form that became effective December 1, 2011, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2019 Evidence course.

PART I: TRUE OR FALSE (40%)

In this section, you must select either “True” or “False.” The statement, as drafted, when read in the context of a Federal Trial, is either True or False.

Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that defendant Donald ‘Boon’ Schoenstein is guilty of Rioting, testimony that in the middle of a riot, his girlfriend Katy Faver, after observing Schoenstein running East on Newberry Road, said to approaching police officers —“Officers, officers, he went that way,” while pointing to the West on Newberry Road, is hearsay.

True False
In a criminal trial for possession with intent to distribute heroin, DEA agent Mary Johnson identified a bag of heroin powder offered by the prosecution as evidence seized from the only defendant’s home. During agent Johnson’s testimony, some heroin powder came out of the bag and fell on the witness stand (the bag had lost part of its plastic seal while in transit via FEDEX, and some powder came out as she handled it). While testifying for the government, the next witness, Timothy Leary, gathered up some of the heroin powder with his finger and swallowed it, in view of the jury and the presiding judge. The court must grant the defense’s objection seeking a ruling that witness Leary is unqualified to testify and his entire testimony should be stricken from the record.

True False
Donna Moore is charged with conspiracy to distribute cocaine. At her trial the prosecution presents the testimony of undercover police officer Smith who arranged to make a purchase of cocaine from her. He testifies that they agreed to meet at the McDonald’s on University Avenue near the Oaks Mall in Gainesville at 3:00 p.m. on Tuesday, May 14, 2019, where Donna had agreed to deliver four ounces of cocaine for which Smith would pay $10,000.00 in cash. Donna said that she would have the cocaine in the trunk of her car, and that Smith should have a bag with the money in it in the trunk of his car. Donna is at the McDonald’s at 3:00 p.m. that Tuesday and she is arrested by other officers in the parking lot after Smith gives her the bag containing the money and she opens her car trunk to place it in it, next to a bag that was already stored there. However, the bag that was in Donna’s car did not contain cocaine. In fact, no cocaine was found on Donna when she was searched pursuant to her arrest, nor in her car or in her house which were searched pursuant to valid warrants. During her case in chief Donna admits that she told Smith that she would sell him cocaine as he described, but she added that she intended to steal the money by giving Smith a fake bag and escaping in her car. During its case in rebuttal, the prosecution offers the testimony of Donna’s former boyfriend John, who testifies that he saw her sell cocaine to two people in the weeks before her arrest. One sale was for four ounces of cocaine and the other for two ounces. Donna’s lawyer objects: “This is character assassination, your Honor!” The court may overrule the objection.

True False
After certain evidence is found to be relevant, the rules allow it to be excluded when its probative value is substantially outweighed by a danger of misleading the jury.

True False
Federal Rule of Evidence 801(c) reads: “ ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” When ruling that a statement is not offered to prove the truth of the matter asserted, courts often use one of the six nonhearsay non-truth use categories discussed in class, namely: (1) impeachment, (2) verbal acts (or parts of acts), (3) effect on listener or reader, (4) verbal markers or objects, (5) circumstantial evidence of state or mind, and (6) circumstantial evidence of memory or belief. But while these common law doctrines survived the adoption of the Federal Rules of Evidence, they do not entirely occupy the field of when a statement is offered for a purpose other than “to prove the truth of the matter asserted in the statement.” Accordingly, judicial opinions may instead use phrases such as “offered to provide context” or “offered for the limited purpose of explaining why a government investigation was undertaken” to explain their ruling that a statement is nonhearsay on a non-truth offer rationale under Rule 801(c).

True False
During civil commitment proceedings against University of Virginia junior Thomas Madison, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several people the previous week: “I am Tebow, Tim Tebow, Heisman Trophy Winner.” Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is hearsay.

True False
Under Rule 702, expert testimony deduced from a well-recognized scientific principle or discovery is admissible only if the thing from which the deduction is made is sufficiently established to have gained general acceptance in the particular field in which it belongs.

True False
In a criminal appeal based on an evidentiary question, the court finds that the claimed error was not properly preserved for appeal by the defendant. The appellate court also finds that the trial court erred in admitting the now-challenged evidence against the defendant. Under the Federal Rules of Evidence, the appellate court is still given discretion to reverse the conviction.

True False
In a criminal trial for first-degree murder, the state offers the testimony of an eyewitness who will identify the defendant, Joseph Jones, as the person that fired ten shots into victim Nancy Smith. The defense objects. At the bench, so that the jurors cannot hear what is happening, the court rules that the evidence is relevant to the case and prejudicial for the defendant Jones because it makes it more likely than it would be without that evidence that his intentional conduct was the proximate cause of the death. The court may admit this evidence under Rule 403.

True False
In a criminal trial for assault, during his case-in-chief, defendant Don offers the testimony of William that victim Vince is a “violent, fight-picking fella.” During its case-in-rebuttal, the prosecution offers the testimony of JoAnn that defendant Don is a “violent, fight-picking fella.” The prosecution’s rebuttal may be admitted.

True False
Defendant, Dr. Buckaroo Banzai, famed law professor, neurosurgeon, particle physicist, and rock-star, is charged with criminal destruction of property. Dr. John Whorfin is called as a witness by the defense in this criminal trial, with the expectation that he will testify that he, not the defendant, destroyed the valuable, highly-modified Ford F-150, by setting it on fire. Dr. Whorfin is a resident of the New Jersey Hospital for the Criminally Insane at Grover’s Mill. Prior to this offer of testimony, in separate proceedings alleging that he had murdered a hospital orderly during an escape attempt, Whorfin was found to be criminally insane and incompetent to stand trial. Among certain other personal quirks, he has publicly stated that he is a red Lectroid from Planet Ten and that he must return to the Eighth Dimension to rescue his army, in order to conquer the universe, starting with Planet Ten. The government objects that Whorfin is incompetent to testify. The court cannot find Whorfin competent to testify.

True False
Following the win in the SEC Championship Game, LSU fan George celebrates his team’s victory at several Atlanta bars as he walks back to his car after the game. He then meets his pal John in the parking lot and gives him a ride back to their hotel in Buckhead. Later that night they are involved in an accident that seriously injures both John and George. John sues driver George to recover damages. During the defense case-in-chief George offers, as proof that John assumed the risk of an accident on account of an impaired driver, his testimony that “I told John before he got in the car that I really should not have had those three martinis half an hour ago.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is hearsay.

True False

PART II: ESSAY PROBLEM (60%)

GENERAL INSTRUCTIONS FOR PART II

Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
            Do not look for issues that are not relevant to completing the exercise as instructed. The instructions determine the pertinent issues and how they must be handled in a carefully-crafted essay. Read them carefully and write accordingly. Evidence is a broad and complex course, I have crafted the issues narrowly, do not waste your time covering issues that the fact-pattern and your instructions as to the mandated result do not require you to address or resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the problem.
            Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2019 Evidence course. Any additional sources of law will be expressly noted in the exam fact-pattern and accompanying statutory supplement, if any.
            Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Evidence, statutory or Constitutional provision, etc. Case citations will be judged on a “close-enough” basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.
     Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer. “Dissents” fail.
     Limited Space. Please keep in mind that you are bound by the character length limit in ExamSoft, and to the space provided in the hand- or typewriting packet.
     No Pencils. If you handwrite any part of your answer, you must do so using a permanent ink pen, subject to a 10% penalty.
     No Abbreviations or Acronyms. You may not use any abbreviations or acronyms other than FRE or TOMA in your essay. You must use the proper names of the persons mentioned in the fact-patter, you may not substitute titles such as “defendant” or “appellant” for the proper names. You may use just the last name to refer to teach person.

People v. Melendez

THE PEOPLE, Plaintiff and Respondent, v.
KEVIN MELENDEZ, Defendant and Appellant.
Court of Appeal of California, Sixth Appellate District

Facts and Procedural History on Appeal

A jury convicted defendant Kevin Melendez of attempted voluntary manslaughter, two counts of assault with a firearm, and shooting at an occupied car. Defendant claims evidentiary error.

Factual Background

Kate (we refer to the victims by given names in the interest of privacy, intending no disrespect or familiarity. (Cal Rules of Court, rule 8.90.)) came to California from Texas and was staying with her husband (from whom she had separated) and their daughters in Prunedale. Kate had previously dated defendant in Texas. When defendant arrived in California shortly after Kate, her husband would not let him stay with them. Kate met Ronald online after she came to California, and they decided to meet for a first date. As Ronald drove past Kate’s husband’s house, he heard four gunshots. He turned his car around and called Kate because the house number she had given him was not visible from the road. He returned to the house where he had heard the shots and saw Kate in the driveway talking to someone in a Toyota Corolla. Kate walked to the road and got in Ronald’s car, visibly nervous and worried. Ronald made eye contact with the driver of the Toyota as he was pulling out of the driveway.

Ronald drove toward Highway 101, and the Toyota followed him. Ronald asked Kate who was in the Toyota, and started driving faster toward the freeway to put distance between the cars. Ronald entered Highway 101, and the Toyota followed. Ronald maneuvered through traffic looking for an exit as the Toyota gained on him. Ronald was in the fast lane and the Toyota was very close behind in the adjacent lane. Ronald looked over his shoulder and saw the driver pointing a gun out the window at his car. Ronald instinctively moved his head to the left, heard a gunshot, felt something “kind of hit my head,” and thought he had been shot. A bullet had entered through the rear window, grazed Ronald’s head, pierced the bill of the cap he was wearing, and exited through the windshield.

Kate called 911 and remained on the line until officers arrived. The operator asked whether she knew the shooter. Kate said, “I know who did it,” and she would “talk to the officers whenever they get here.” She related to the operator that the shooter had followed them from her house, he was a transient, he was driving a gray Toyota Corolla, and he had a .40 caliber black gun. Kate told the 911 operator she did not want to give the shooter’s name because she was “kinda confused,” “freakin’ out a little bit,” “kinda scared,” and did not want to “cause any more issues.”

California Highway Patrol Officer Rene Bartolomei responded to the shoulder of the highway where Ronald and Kate were parked. Kate gave Officer Bartolomei the shooter’s name, identified him as her ex-boyfriend, and provided the Texas license plate number for the Toyota Corolla. She told Officer Bartolomei defendant had shot at the vehicle, owned a black handgun, kept ammunition is his vehicle, and would shoot at law enforcement.

Defendant was arrested in Texas a few weeks later driving the Toyota Corolla. He was stopped for speeding, the car was registered in his name, and he said he had had the car for over a year. Defendant was arrested on a warrant for the shooting.

An amended information charged defendant with attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), assault with a firearm (§ 245, subd. (a)(2); counts 2 and 3), and shooting at an occupied car (§ 246; count 4). (Undesignated statutory references are to the Penal Code.) The information alleged that defendant intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), personally used a firearm (§ 12022.5, subd. (a)), and personally used a dangerous and deadly weapon (§ 969f, subd. (a)).

Kate did not testify at trial. Ronald, Officer Bartolomei, and the arresting officer testified. Kate’s relationship with defendant was established through the testimony of her brother, and Kate’s husband established the presence of defendant and his car in Prunedale a few days before the shooting. A transcript of the 911 call was admitted in evidence, and the location of a cell phone linked to a phone number used by defendant was placed in the Prunedale area at the time of the offense. The phone moved south immediately following the shooting through Bradley, Paso Robles, and California City, and was operating in Texas the next day.

Defendant called no witnesses at trial and argued that the prosecution failed to meet its burden of proving the shooter’s identity and intent. Defendant was found not guilty of attempted murder. He was found guilty of the lesser included offense of attempted voluntary manslaughter and the remaining counts, and the associated firearm use allegations were found true.

Defendant was sentenced to the principal term of three years on count 2 (assaulting Ronald), consecutive to 10 years for the related gun use enhancement. The court imposed a consecutive one-year term on count 3 (assaulting Kate) plus 16 months for the gun use enhancement, for a total prison term of 15 years four months. Defendant was sentenced to five years six months on count 1 and seven years on count 4 concurrent to the principal term.

The Evidentiary Questions

Defendant argues it was error for the trial court to admit Kate’s hearsay statements to Officer Bartolomei. The prosecution moved in limine to admit Kate’s “non-testimonial, excited utterance” statements to Officer Bartolomei identifying the shooter by name and as her ex-boyfriend, and relating that defendant had pursued them at a high rate of speed and pointed a black handgun at them and that there had been a recent dispute between her and defendant. The court understood from the trial briefs that Kate and Ronald were shot at while driving on the highway, and the bullet went through the hat Ronald was wearing. The prosecutor stated as an offer of proof: “Officer Bartolomei was the first responder and when he arrived both [Ronald] and [Kate] seemed very distressed and worried and concerned that the shooter, the defendant, might return and harm them,” and the conversation took place on the side of the road 10 minutes after [Kate] placed the 911 call.

Defendant opposed the motion because “[w]e never had the opportunity to cross-examine her or speak with her or see her or hear her demeanor”; because “there are other issues involving [defendant] and [Kate] that may cause her to make up a story that he’s the shooter”; and because “there’s so many issues involving the excited utterances that we’re asking you not to allow any comments by [Kate].”

At the hearing Officer Bartolomei testified that he spoke with Kate only briefly before she divulged the shooter’s identity, during which time Kate remained under the stress of the event. She and her date had just been shot at, and the bullet nearly entered Ronald’s head. Officer Bartolomei described Kate’s demeanor at the time as “terrified,” and “visibly shaken,” observations that are consistent with Kate’s statements and demeanor during the 911 call.

Officer Bartolomei testified that he spoke with Kate “briefly about how important it was to identify who the shooter was,” but he did not relate the substance of that conversation. The 911 operator had also urged Kate to disclose the shooter’s identity for safety reasons (defendant does not challenge the non-testimonial nature of Kate’s conversation with the 911 operator), and Officer Bartolomei explained that safety was his immediate priority: “Due to the nature of the call when I first arrived my priority, my responsibility was to ensure the safety of everyone associated with this.” While Officer Bartolomei acknowledged the shooter needed to be captured in order to be held accountable for his actions, he was chiefly concerned with “prevent[ing] any further harm to anyone whether it be the two passengers or anyone else that this person may come across.”

In granting the state’s motion, the court commented:
- “[B]ased on the offer of proof that’s been provided, what I’m hearing is a highly stressful incident of driving on the road, a bullet coming through the car window, shattering the window, and going through an individual’s cap that was being worn on his head. That strikes me as something that would cause someone to be highly agitated and excited and fearful. [¶] And then a call to 911 was made then within a very short period of time, 10 minutes or thereabouts, an officer arrives and this conversation takes place. The offer of proof is that [Kate] in particular was still under distress and fear, in particular the fear that the shooter might return and harm them. That would give her reason to identify the shooter, how she knows him as to support the identification being that he’s her ex-boyfriend, and that it happened upon his pursuit at a high rate of speed and involved a black handgun.”

The court ruled that the statements (other than those relating an argument or break up) were admissible hearsay under the “excited utterances” rule and “non-testimonial primarily designed to explain to the officers what happened, who the perpetrator was, and the need to get him essentially apprehended so that way their safety could be secured.” Although the court heard a recording of the 911 call during the evidentiary hearing, and defendant did not object to its admissibility, it ruled that at trial only the transcript of the conversation would be admitted.

Defendant moved in limine to exclude Kate’s out-of-court statements as hearsay and “subject to a constitutional challenge pursuant to Crawford v. Washington (2004) 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177.” That motion was heard after the court ruled on the prosecution’s motion. At that time defendant addressed only statements Kate had made to Ronald and to Officer Bartolomei, and the court ruled that objections to Ronald’s testimony would be addressed on a question by question basis at trial and denied the motion to exclude the statements to Officer Bartolomei.

On appeal, defendant challenges only the admission of Kate’s statements to Officer Bartolomei, arguing that the trial court erred by not considering “the legal principle that the declarant not reflect or deliberate for a statement to be spontaneous,” and the record shows that Kate did deliberate because she withheld the shooter’s name from the 911 operator and Officer Bartolomei until after his “exposition on why she should identify the shooter.” Defendant also urges that the interrogation became formal when Officer Bartolomei explained to Kate why she should identify the shooter, and the emergency had dissipated “[a]t the time that [Kate] identified [defendant] as the shooter [because] Officer Bartolomei had learned that neither [Kate] nor [Ronald] were injured, that the dispute was private — between ex-lovers — rather than public, and that the shooter had fled.”

Important Jury Instructions

California Pattern Jury Instruction 970: Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3)
The defendant is charged [in Count ____________] with shooting a (firearm/BB Device) in a grossly negligent manner [in violation of Penal Code section 246.3].

To prove that the defendant is guilty of this crime, the People must prove that:

The defendant intentionally shot a (firearm/BB device);
The defendant did the shooting with gross negligence;
[AND]
The shooting could have resulted in the injury or death of a person(;/.)
<Give element 4 when instructing on self-defense or defense of another.>
[AND
The defendant did not act (in self-defense/ [or] in defense of someone else).]

Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when:

He or she acts in a reckless way that creates a high risk of death or great bodily injury. AND
A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
[A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.]
[A BB device is any instrument that expels a projectile, such as a BB or a pellet, through the force of air pressure, gas pressure, or spring action.]
[The term[s] (great bodily injury/ [and] firearm) (is/are) defined in another instruction to which you should refer.]

California Pattern Jury Instruction 253: Union of Act and Intent: Criminal Negligence
For you to find a person guilty of the crime[s] of ______________________ <insert name[s] of alleged offense[s]> [or to find the allegation[s] of ______________________ <insert name[s] of enhancement[s]> true], a person must do an act [or fail to do an act] with (criminal/gross) negligence. (Criminal/Gross) negligence is defined in the instructions on that crime.

[Graphic: Map of the area. Why was this supposed to be useful?]

Instructions for the Answer

You are a clerk for Associate Justice Adrienne Grover of the California Sixth District Court of Appeal, and she has been selected to draft the opinion for the three-judge panel. She assigns you to write a detailed memorandum that explains that the trial court did not commit error in admitting Officer Bartolomei’s testimony regarding Kate’s statements because, among other necessary rulings, they were admissible hearsay under the excited utterances rule and not testimonial in nature for purposes of the Confrontation Clause. Except for the statutes and instructions referenced here, you will assume that this case is governed by the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2019 Evidence course.

Facts taken and modified for examination purposes from People v. Figueroa, 2019 Cal. App. Unpub. LEXIS 6605; 2019 WL 4747243 (September 30, 2019).

University of Florida

Levin College of Law

THE UNIVERSITY of FLORIDA