RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Excited Utterances Under Crawford

RI Criminal Defense Practice Manual CoverRHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

CONFRONTATION

Excited Utterances Under Crawford

R.I. R. Evid. 893(2): Excited Utterance “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

Some courts have held that an excited utterance is per se non-testimonial because of its spontaneous nature. However, the question is unsettled in Rhode Island and the following multi-tiered analysis is recommended whenever an excited utterance is at issue:

Step 1: Argue that the court should employ a case-by-case approach to determine whether an excited utterance is testimonial under Crawford.

Rationale: under Crawford, the subjective expectations of the declarant (reacting in the moment) are irrelevant. The relevant consideration is whether it is reasonably evident to an objective witness that the declarant’s statement would be available for use at trial. Therefore, a per se rule does not satisfy Constitutional requirements.
A number of jurisdictions have expressly declined to apply a bright line rule that an excited utterance is per se non-testimonial.
An “excited utterance made at the scene of a crime does not lose its character as testimonial merely because the declarant was excited at the time it was made.” Lopez v. State, 888 So.2d 693, 699-700 (Fla. Dist. Ct. App. 2004).
“Excited utterances can [not] be automatically excluded from the class of testimonial statements.” Id. at 699.
“Whether a statement [is testimonial] depends on the purpose for which the statement is made, not on the emotional state of the declarant.” Commonwealth of Pennsylvania v. Gray, 867 A.2d 560, 576 (Pa. Sup. 2005).
“[W]e do not think that excited utterances can be automatically excluded from the class of testimonial statements.” Id. at 577.
“The very fact that a hearsay exception is necessary for admissibility shows that the statement is testimonial. ” People v. Dobbin, 791 N.Y.S.2d 897, 903 (N.Y. Sup. Ct. Co.2004).
“We decline to join those courts that have established a bright-line rule that excited utterances can never be testimonial. ” Spencer v. State, 162 S.W.3d 877, 881 (Tex. App. Houston 2005).
“We do not agree. that a statement that qualifies as an ‘excited utterance’ is necessarily non-testimonial.” Hammon v. State, 829 N.E.2d 444, 453 (Ind. 2005).
“The findings necessary to support a conclusion that a statement was an excited utterance do not conflict with those that are necessary to support a conclusion that it was testimonial.” Davis v. State, 169 S.W.3d 600, 670 (Tex. App. Austin 2005).
Step 2: Whenever possible, argue that statements made to either a police officer or a government agent were made in the course of interrogation. (Statements made to non-government agents are unlikely to be testimonial.)

Generally:
“Interrogation” is never explicitly defined in Crawford. Moreover, the court expressly notes that the term is used in its colloquial sense. Crawford, 541 U.S. at 52. However, Davis has since defined how to apply Crawford to police interrogations:
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Davis, 547 U.S. at 822.
“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.” Id.
Statements to Police Officers:
Courts have considered a number of factors to determine whether statements to police officers qualify as interrogation. Generally, courts have looked favorably upon the following:

Structured statements.
Statements made in a formal setting.
Lengthier statements.
Statements made away from the crime scene.
Statements made or elicited with the intention of aiding in the prosecution of a defendant.
Statements that are recorded or otherwise memorialized.
Courts have assigned varying significance to these factors and have likewise reached different conclusions about what constitutes interrogation within the meaning of Crawford.
A victim’s written statement in an affidavit given to a police officer is always testimonial. There is no emergency in progress, the statements refer to past events, and the primary purpose of the officer’s interrogation is to investigate a possible past crime. Davis, 547 U.S. at 829-30.

Statements to responding police officers from an emotionally distraught father, who discovered a neighbor molesting his 17-month-old daughter, were non-testimonial excited utterances discussing the present events and attempting to resolve the emergency. This holding was reached even though the suspect had already fled and victim was safe by the time police arrived and the statements were made. State v. Bergevine, 942 A.2d 974 (R.I. 2008).

Police responding to a domestic assault call were greeted at the door by the visibly upset and shaking victim, who stated “ [Defendant] beat me up.” The statement qualified as an excited utterance and was admissible consistent with Davis, as “nontestimonial and made voluntarily during the initial response of the police officer to an emergency call for assistance.” State v. Pompey, 934 A.2d 210, 214 (R.I. 2007).

A statement to the police by the child victim’s mother who called the police was testimonial because it was “knowingly given in response to structured police questioning.” People v. Sisavath, 13 Cal.Rptr.3d 753, 757 (Cal. App. 4th 2004).

“[A] startled person who identifies a suspect in a statement made to a police officer at the scene of a crime surely knows that the statement is a form of accusation that will be used against the suspect. In this situation, the statement does not lose its character as a testimonial statement merely because the declarant was excited at the time it was made.” Lopez, 888 So.2d at 699.

Statements made by witnesses in response to police investigation at crime scene shortly after commission of crime were testimonial. Moody v. State, 594 S.E.2d 350 (Ga. 2004) (the court twice reaffirmed this holding in Jenkins v. State, 604 S.E.2d 789 (Ga. 2004) and Bell v. State, 597 S.E.2d 350 (Ga. 2004)).

A policeman’s interview with an alleged assault victim at the hospital was interrogation because it was “structured police questioning.” Wall v. State, 143 S.W.3d 846, 851 (Tex. App. Corpus Christi 2004).

Because the purpose of police questioning was to gather evidence for a criminal prosecution, statements by the witness to officers at the hospital were testimonial. People v. West, 823 N.E.2d 82 (Ill. App. 1st Dist. 2005).
Statements to Other Government Agents:
A witness “who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51.

The recording of a government informant’s questions to defendant and defendant’s answers confessing to murder were admissible when informant died before trial. Defendant argued that the recording was testimonial under Crawford and granted him the right to confront the informant. R.I.S.C. held that the informant’s questions and statements on the recording “even if made in anticipation of prosecution-were not asserted to prove the truth of any issue, but instead provided context to defendant’s confession. Crawford does not apply to nonhearsay. State v. DeJesus, 947 A.2d 873 (R.I. 2008).

Where a statute allowed a social worker to testify in place of children in sexual abuse cases, statements made to the social worker by the children were testimonial because they were for the purpose of testifying against defendant. Snowden v. State, 846 A.2d 36 (Md.Spec.App.2004).

Seven-year-old child made the same statement to his mother, a police detective, and a child abuse investigator, but only the statement to his mother was non-testimonial. In re Rolandis G., 817 N.E.2d 183, 190 (Ill. App. 2d. Dist. 2004).

Victim’s statement to emergency room doctor that defendant had tied and raped her was testimonial, because the primary purpose was to prove what happened the previous day rather than meet an ongoing emergency. However, the erroneous admission was harmless where defendant also gave a detailed, unrefuted confession. People v. Spicer, 884 N.E.2d 675 (Ill. App. 1st Dist. 2007).
Statements in 911 Calls:
Although not law enforcement officers, 911 operators are agents of law enforcement to whom Crawford and Davis apply. Davis, 547 U.S. at 823 n. 2.
“The initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” Id. at 827.
However, “a conversation which begins as an interrogation to determine the need for emergency assistance, and is not subject to the Confrontation Clause, may evolve into testimonial statements subject to the Confrontation Clause once that purpose has been achieved; trial courts should. redact or exclude the portions of any statement that have become testimonial.” Id. at 828.

In Davis, a domestic battery victim called 911 and was initially engaged in a non-testimonial interrogation detailing what caused the ongoing emergency, describing events as they occurred, and providing information about herself and the assailant for the purpose of obtaining police assistance to resolve the emergency. When the emergency ended and the operator began asking structured questions to establish what had occurred, the interrogation had turned testimonial.
Approximately half of the courts deciding this issue have determined that statements to a 911 operator are testimonial.
One court cited several reasons: (1) the statement was for the purpose of establishing a crime, (2) a reasonable witness would believe that the statement would be used by prosecutors, and (3) a 911 call is an interrogation by the government. Dobbins, 791 N.Y.S.2d at 897.
The principal rationale is that the 911 operator is asking for information that will likely be used to prosecute a crime.

The 911 call of rape victim’s emotionally distraught father, made immediately following the crime, was admissible under the excited utterance and present sense impression exceptions. Crawford was inapplicable because the statements detailed only the present events in the face of an ongoing emergency, consistent with Davis. State v. Bergevine, 942 A.2d 974 (R.I. 2008).

“When a 911 call is made to report a crime and supply information about the circumstances and the people involved, the purpose of the information is for investigation, prosecution, and potential use at a judicial proceeding; it makes no difference what the caller believes.” Cortes, 781 N.Y.S.2d at 415.

“The statements on the 911 tapes are preserved as official documents.” Id.

When a witness called to report that defendant was violating a restraining order, the statement was testimonial because the purpose of the call was to aid in defendant’s ―apprehension and prosecution.‖ Powers, 99 P.3d at 1265.

The court found some statements to be testimonial and others to be non-testimonial based on the questions asked by the operator. Specifically, statements concerning the nature of the attack, and the complainant’s medical needs, age, and location were non-testimonial. Statements concerning the assailants and the stolen possessions were testimonial. West, 823 N.E.2d at 82.

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