THE FEDERAL CORNER
November 2006
The Supreme Court Continues to Look at Crawford Issues
F. R. (Buck) Files, Jr.
On October 2, 2006, the Supreme Court granted petitions for writs of certiorari in Texas v. Mason, ___ S.Ct. ____, 2006 WL 1521081 (Mem) (U.S. 2006) and Cross v. Kentucky, ___ S.Ct. ___, 2006 WL 993564 (U.S.Ky. 2006). In Mason, the Fifth Court of Appeals of Texas had held that a victim’s out-of-court statements to a police officer were the product of interrogation and barred from admission under the Confrontation Clause. In Cross, the Kentucky Court of Appeals had held that a victim’s out-of-court statements were admissible under the Confrontation Clause. The Supreme Court also vacated the judgments and remanded the cases to the Texas and Kentucky appellate courts “… for further consideration in light of Davis v. Washington, 547 U.S. ___ 2006).”
The Texas Case
Jett J. Mason, Jr. was convicted of misdemeanor assault and sentenced to one day in jail, probated for six months. These are the critical facts in Mason:
Donald Blasingame, a patrol sergeant with the Seagoville Police Department, and the State's only witness at trial, testified that on July 6, 2002, he responded to a 911 disturbance call at a Seagoville residence. When Blasingame arrived, the complainant, who was upset, crying, and angry, answered the door. In response to Blasingame's question about why she called the police, the complainant said that she and her boyfriend, later identified as appellant, had been sleeping when his cellular telephone rang. When the complainant woke appellant up to answer the telephone, he slapped her on the face, shoved her off the bed, put his hand on her throat, and told her he was going to kill her. Blasingame observed red marks and swelling around the complainant's mouth and nose, which were consistent with her statements.
The following is from Justice Sue Lagarde’s opinion:
The complainant did not appear at trial. The State sought to prove its case through Blasingame's hearsay testimony of the complainant's oral statements made to him at the scene. Appellant objected to the out-of-court statements on both hearsay and Confrontation Clause grounds.
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The issue we must decide in this appeal is whether the non-testifying complainant's out-of-court statements to the police officer who responded to her 911 call were testimonial in nature. We hold they were testimonial. We further hold that the trial court erred in admitting the statements in violation of the Confrontation Clause, as recently interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and that appellant was harmed by their admission. Accordingly, we reverse the trial court's judgment and remand for further proceedings.
The State filed its petition for discretionary review which was refused; thereafter, the State filed its petition for writ of certiorari.
The Kentucky Case
Terry Cross was convicted of second degree burglary, second degree robbery, and first degree persistent felony offender and sentenced to 10 years confinement on each count, with the sentences to run concurrently. These are the critical facts in Cross:
At 6:12 p.m. on April 9, 2001, a woman who identified herself as 40-year old Shelly Miles (a neighbor of Natia Clarkson) called 911 from her apartment on Brockton Lane and reported that a large black man whom she did not know had broken down her back door, come in, choked her until she lost consciousness, taken her prescription medications and money, and left in yellow cab # 786. She further advised 911 that she had called the cab company to report this and they advised her to call the police. She reported to 911 that the next door neighbors knew she had narcotics due to her having cancer; and that she had been unable to control her bladder and had urinated on herself, but said she did not need EMS.
The following is from Judge John D. Miller’s opinion:
We first address Cross's contention of constitutional error due to the introduction of the 911 tape, which he claims was hearsay and a violation of his right of confrontation due to the victim's death before trial, and therefore unavailability to testify at trial.
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We conclude in the case at bar that the 911 tape, admissible under KRE 803(2), is not prohibited by Crawford because it is not a testimonial statement. A 911 call, such as this one, does not implicate the underlying principal that the Confrontation Clause guards against.
The defendant filed his petition for discretionary review which was refused; thereafter, the defendant filed his petition for writ of certiorari.
The Problem
It appears that members of the Bench and the Bar are still confused about what the Supreme Court meant in Crawford v. Washington, 124 S.Ct. 1354 (2004). 2,096 state cases have cited Crawford; 170 of these were from Texas. 931 federal cases have cited Crawford; 40 of these were from the Fifth Circuit.
A Review of Crawford v. Washington
The critical facts [from the syllabus]:
Petitioner was tried for assault and attempted murder. The State sought to introduce a recorded statement that petitioner's wife Sylvia had made during police interrogation, as evidence that the stabbing was not in self-defense. Sylvia did not testify at trial because of Washington's marital privilege. Petitioner argued that admitting the evidence would violate his Sixth Amendment right to be ‘confronted with the witnesses against him.’ Under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597, that right does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears ‘adequate “indicia of reliability,” ’ a test met when the evidence either falls within a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’ Id., at 66, 100 S.Ct. 2531. The trial court admitted the statement on the latter ground. The State Supreme Court upheld the conviction, deeming the statement reliable because it was nearly identical to, i.e., interlocked with, petitioner's own statement to the police, in that both were ambiguous as to whether the victim had drawn a weapon before petitioner assaulted him.
The holding [from the syllabus]:
The State's use of Sylvia's statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.
[SCALIA, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post.]
A Review of Davis v. Washington
In 2006, the Supreme Court granted certerori in two cases: Davis v. Washington and Hammon v. Indiana; however, the proper citation is Davis v. Washington, 126 S.Ct. 2266 (2006).
These are the critical facts in Davis [from the syllabus]:
A 911 operator ascertained from Michelle McCottry that she had been assaulted by her former boyfriend, petitioner Davis, who had just fled the scene. McCottry did not testify at Davis's trial for felony violation of a domestic no-contact order, but the court admitted the 911 recording despite Davis's objection, which he based on the Sixth Amendment's Confrontation Clause. He was convicted. The Washington Court of Appeals affirmed, as did the State Supreme Court, which concluded that, inter alia, the portion of the 911 conversation in which McCottry identified Davis as her assailant was not testimonial.
These are the critical facts in Hammon [from the syllabus]:
When police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy told them that nothing was wrong, but gave them permission to enter. Once inside, one officer kept petitioner Hershel in the kitchen while the other interviewed Amy elsewhere and had her complete and sign a battery affidavit. Amy did not appear at Hershel's bench trial for, inter alia, domestic battery, but her affidavit and testimony from the officer who questioned her were admitted over Hershel's objection that he had no opportunity to cross-examine her. Hershel was convicted, and the Indiana Court of Appeals affirmed in relevant part. The State Supreme Court also affirmed, concluding that, although Amy's affidavit was testimonial and wrongly admitted, it was harmless beyond a reasonable doubt.
The holding [from the syllabus]:
The Confrontation Clause bars ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.’ Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177. These cases require the Court to determine which police ‘interrogations’ produce statements that fall within this prohibition. Without attempting to produce an exhaustive classification of all conceivable statements as either testimonial or nontestimonial, it suffices to decide the present cases to hold that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
The Davis Case
McCottry's statements identifying Davis as her assailant were not testimonial.
This case requires the Court to decide whether the Confrontation Clause applies only to testimonial hearsay, and, if so, whether the 911 recording qualifies. Crawford suggested the answer to the first question, noting that ‘the Confrontation Clause ... applies to “witnesses” against the accused-in other words, those who “bear testimony.”’ Only ‘testimonial statements’ cause a declarant to be a witness. The Court is unaware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not involve testimony as thus defined. Well into the 20th century, this Court's jurisprudence was carefully applied only in the testimonial context, and its later cases never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases involving testimonial hearsay.
The question in Davis, therefore, is whether, objectively considered, the interrogation during the 911 call produced testimonial statements. In contrast to Crawford, where the interrogation took place at a police station and was directed solely at establishing a past crime, a 911 call is ordinarily designed primarily to describe current circumstances requiring police assistance. The difference is apparent here. McCottry was speaking of events as they were actually happening, while Crawford's interrogation took place hours after the events occurred. Moreover, McCottry was facing an ongoing emergency. Further, the statements elicited were necessary to enable the police to resolve the present emergency rather than simply to learn what had happened in the past. Finally, the difference in the level of formality is striking. Crawford calmly answered questions at a station house, with an officer-interrogator taping and taking notes, while McCottry's frantic answers were provided over the phone, in an environment that was not tranquil, or even safe. Thus, the circumstances of her interrogation objectively indicate that its primary purpose was to enable police assistance to meet an ongoing emergency. She was not acting as a witness or testifying.
The Hammon Case
Amy Hammon's statements were testimonial. They were not much different from those in Crawford. It is clear from the circumstances that Amy's interrogation was part of an investigation into possibly criminal past conduct. There was no emergency in progress, she told the police when they arrived that things were fine, and the officer questioning her was seeking to determine not what was happening but what had happened. Objectively viewed, the primary, if not sole, purpose of the investigation was to investigate a possible crime. While the formal features of Crawford's interrogation strengthened her statements' testimonial aspect, such features were not essential to the point. In both cases, the declarants were separated from the defendants, the statements recounted how potentially criminal past events began and progressed, and the interrogation took place some time after the events were over. For the same reasons the comparison to Crawford is compelling, the comparison to Davis is unpersuasive. The statements in Davis were taken when McCottry was alone, unprotected by police, and apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past.
The Indiana courts may determine on remand whether a claim of forfeiture by wrongdoing-under which one who obtains a witness's absence by wrongdoing forfeits the constitutional right to confrontation-is properly raised in Hammon, and, if so, whether it is meritorious. Absent such a finding, the Sixth Amendment operates to exclude Amy Hammon's affidavit.
The Court affirmed the judgment of the Supreme Court of Washington in Davis and reversed the judgment of the Supreme Court of Indiana in Hammon.
[SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part.]
Clearly, in Davis, the Court attempted to clarify its holding in Crawford. It is obvious, however, that the Court was not entirely successful. As recent as it is, 106 state cases have cited Davis; 12 of these were from Texas. 89 federal cases have cited Davis; four of these were from the Fifth Circuit.
Conclusion
Now, the burden is on the justices and judges of the Fifth Court of Appeals of Texas and the Kentucky Court of Appeals to further consider Mason and Cross in light of Davis. This will, of course, take some time. Hopefully, though, the Supreme Court will eventually give us more meaningful guidance on confrontation issues then they have in Crawford and Davis. If they do not, lawyers and judges will continue to puzzle over these issues.
