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People v. Kozlowski3/4/2002
son's objection was overruled.
Kozlowski also objected, arguing that the statement was nevertheless hearsay as to him. The prosecution argued that the evidence was not hearsay and that it was relevant to Kozlowski's case because-even if he was not present when Gatson made this statement-he and Gatson adopted each other's actions and words by virtue of their working together in the course of the kidnappings. Kozlowski's objection was overruled, but the trial court indicated that it was willing to hear more on this issue from Kozlowski later.
Later, out of the presence of the jury, Kozlowski argued against attributing to him Gatson's statements that Robyn was to be his girlfriend. He sought a limiting jury instruction to this effect. The court specifically asked Kozlowski if his request for a limiting instruction pertained to this particular statement that Gatson made twice; Kozlowski responded in the affirmative. The prosecution argued that the evidence showed that the statement was made once in Kozlowski's presence and once outside of it. It reasoned that by his conduct, Kozlowski adopted Gatson's statement. The prosecution also argued that the statements were not hearsay.
The trial court ruled that the statements were not hearsay as to Gatson, but continued to hear argument about whether they were hearsay as to Kozlowski. Kozlowski argued against attributing Gatson's intent to him and again sought a limiting instruction to that effect. Ultimately, the trial court ruled that Gatson's statements that Robyn was to be his girlfriend for the night were admissible against Kozlowski and that the jury need not be given any limiting instruction.
As with Gatson's statement expressing an intent to shoot the police which Kozlowski challenged on appeal, the record does not clearly establish that Kozlowski's request for a limiting jury instruction encompassed more than Gatson's statements that Robyn was to be his girlfriend. However, because Kozlowski twice posed a hearsay objection to evidence of Gatson's statements that he had been identified in court on a prior occasion, we find that Kozlowski put the trial court on notice that these statements were also at issue when the request for a limiting jury instruction was before it.
Although Kozlowski objected to these statements on hearsay grounds, we find that they were not hearsay. Hearsay evidence must be offered to prove the truth of the matter asserted. (Evid. Code, ยง 1200, subd. (a).) When a third party's statement is admitted for reasons other than the truth of the matter asserted, the defendant may not bar admission of the statement on hearsay grounds. (People v. Gonzales (1968) 68 Cal.2d 467, 471, cert. den. sub nom. Gonzales v. California (1969) 393 U.S. 1055.) Gatson's statements that someone had identified him in court before were offered, not to prove that Gatson had ever been on trial before or had been identified by a prior victim, but as evidence tending to establish that he sought to frighten Lisa and Robyn into complying with his demands.
In an analogous case, a narcotics agent approached a defendant and asked if he had any heroin. The defendant said that he did not, but indicated a third party who did. When the defendant pointed to the third party and then to the agent, the third party nodded. The defendant then told the agent that the third party would "take care of you," prompting the third party to shake his head in acknowledgement. The agent approached the third party asking to buy heroin. The third party indicated that he would get it, received money from the agent and returned a few minutes later to hand over a package to the agent. The package, in fact, did not contain a narcotic s
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