# United States v. Joseph Arnold > Court of Appeals for the Sixth Circuit · May 18, 2007 · 486 F.3d 177 URL: https://www.frixlaw.com/law-library/cases/9499669 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Joseph ARNOLD, Defendant-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** May 18, 2007 - **Citations:** 486 F.3d 177; 73 Fed. R. Serv. 583; 2007 U.S. App. LEXIS 11616; 2007 WL 1452230 - **Precedential status:** Published - **Opinion:** Concurring in part by Griffin - **Judges:** Boggs, Martin, Batchelder, Daughtrey, Moore, Cole, Clay, Gilman, Rogers, Sutton, Cook, McKeague, Griffin - **Cited by:** 204 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499669 ## How later opinions describe it (automated extraction) - finding sufficient evidence to convict on a felon-in-possession charge, observing that “[a]s in all criminal trials, the jury did not have to draw these inferences. But it reasonably could have reached these conclusions—and when that is the case we must respect the jury’s infe… - concluding that witness’s statements and hand gestures indicating the type of gun defendant possessed sufficed to establish possession where police, soon after, recovered a gun consistent with that description from under the passenger seat on which defendant was seated, even t… - finding USCA11 Case: 22-14116 Document: 89-1 Date Filed: 11/05/2025 Page: 14 of 29 14 Opinion of the Court 22-14116 that the unprompted nature of the statement and the victim’s “dis- tress” both “suggest[ed] that the statement was nontestimonial” - explaining that a statement is testimonial where circumstances “objectively indicate” that the “primary purpose of the interrogation is to establish or prove events potentially relevant to later criminal prosecution” - holding that a victim’s spontaneous exclamation, “That’s him,” when her assailant returned to the scene bore “even less resemblance to testimony” than the victim’s earlier statements in response to police questioning ## Opinion text GRIFFIN, Circuit Judge, concurring in part and dissenting in part. I join in Sections I, II, and III of the majority opinion and in the result of Section V and that portion of Section IV that rejects defendant’s constitutional challenge to the admissibility of complainant Tamica Gordon’s 911 telephone call, her initial 30-second narrative on-the-scene statement, and her later spontaneous statement, “that’s him, that’s the guy that pulled the gun on me, Joseph Arnold, that’s him.” However, I respectfully dissent from the majority’s constitutional analysis and disposition pertaining to the complainant’s hearsay statements made in response to police interrogation. Because these errors were not harmless, I would reverse and remand for a new trial. *197 I. The majority holds that all of Tamica Gordon’s hearsay statements made to the police at the alleged crime scene were “nontestimonial” and, therefore, not subject to defendant’s right of confrontation as guaranteed by the Sixth Amendment. I disagree. The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him....” In Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the Supreme Court held that, consistent with the Confrontation Clause guarantee, “testimonial” statements made by a declarant who does not testify at trial are admissible against an accused' only if the declarant is unavailable and the accused was afforded a prior opportunity for cross examination. Although the Crawford Court did not formulate a definition for “testimonial” statements, it emphasized that under any advocated definition “[sjtatements taken by police officers in the course of interrogations” are testimonial statements. Id. at 52 , 124 S.Ct. 1354 . Recently, in Davis v. Washington, 547 U.S.-, 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006), and its consolidated case, Hammon v. Indiana, the Supreme Court provided further guidance with regard to the parameters of statements deemed “testimonial.” First, in Davis , the Court held that the complainant’s 911 telephone call was nontestimonial and, therefore, not subject to the Confrontation Clause of the Sixth Amendment. In upholding the admissibility of the 911 call, the Court stated: 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. 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. 1 Id. at 2273-74 . In Davis, because the 911 call was made in response to an ongoing emergency, and in connection with the need for police assistance, the portions of the 911 call at issue were deemed nontesti-monial. The dichotomy adopted by the Supreme Court in Davis led to the opposite result in the companion Hammon case. In Ham-mon, the police responded to a late-night report of a domestic disturbance at the home of Hershel and Amy Hammon. Upon arriving at the scene, the police encountered a “somewhat frightened” Amy, alone on the front porch, who initially told the investigating officers that “nothing was the matter.” 126 S.Ct. at 2272 . Amy gave the police permission to enter the house, where an officer noticed a gas heating unit in the living room with pieces of broken glass on the ground in front of it and flame *198 emitting from the front of the heating unit. Id. Hershel, who was in the kitchen, told the police that he and his wife had been in an argument, but that “everything was fine now” and the argument “never became physical.” Id. At this point, Amy had come back inside and, while Hershel was kept in a separate area of the house, an officer interviewed Amy and then had her fill out and sign a battery affidavit. In the affidavit, Amy alleged that her husband broke the furnace, shoved her to the floor into the broken glass, hit her in the chest, and threw her down. The State charged Hershel with domestic battery and with violating his probation. Amy was subpoenaed, but she did not appear at her husband’s subsequent bench trial. The trial court admitted the affidavit and testimony of the officer who questioned her over defense counsel’s objection that the opportunity for cross examination of the declarant was improperly precluded. The trial judge thereafter found Hershel guilty on both charges, and the Indiana Supreme Court ultimately affirmed, concluding in pertinent part that, although Amy’s affidavit was testimonial and wrongly admitted, its admission was harmless beyond a reasonable doubt. After granting certiorari, the United States Supreme Court reversed the defendant’s convictions and remanded for further proceedings, holding that Amy Ham-mon’s statements were accusations of past events, not “cries for help” emanating from an ongoing emergency, and, thus, were testimonial in nature. Consequently, the Court held, under these particular circumstances, that the Sixth Amendment operated to exclude Amy’s affidavit: Both Indiana and the United States as amicus curiae argue that this case should be resolved much like Davis . For the reasons we find the comparison to Crawford compelling, we find the comparison to Davis unpersuasive. The statements in Davis were taken when McCottry [the complainant] was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. MeCottry’s present-tense statements showed immediacy; Amy’s narrative of past events was delivered at some remove in time from the danger she described. And after Amy answered the officer’s questions, he had her execute an affidavit, in order, he testified, “[t]o establish events that have occurred previously.” App. in No. 05-5705, at 18. Although we necessarily reject the Indiana Supreme Court’s implication that virtually any “initial inquiries” at the crime scene will not be testimonial ... we do not hold the opposite — that no questions at the scene will yield non-testimonial answers. We have already observed of domestic disputes that “[o]f-ficers called to investigate ... need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel [v. Sixth Judicial District Court of Nevada, Humboldt County], 542 U.S., at 186, 124 S.Ct. 2451 [ 159 L.Ed.2d 292 (2004)]. Such exigencies may often mean that “initial inquiries” produce nontestimonial statements. But in cases like this one, where Amy’s statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were “initial inquiries” is immaterial. Cf. Crawford, supra, at 52, n. 3 , 124 S.Ct. 1354 [ 158 L.Ed.2d 177 ]. 6 *199 Id. at 2279. In the wake of Crawford , our courts must undertake a two-step inquiry before admitting or excluding hearsay evidence that is subject to a Confrontation Clause challenge. First, it must be determined whether the hearsay evidence is admissible under the applicable rules of evidence. Second, if the evidence is admissible under the rules, it must be determined whether the hearsay statement is testimonial or nontestimonial. The Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross examination.” Crawford, 541 U.S. at 53-54 , 124 S.Ct. 1354 . The majority recognizes these principles and correctly applies them to complainant’s 911 call and to her initial 30-second narrative. With regard to Gordon’s initial 30-second statement, Officer Brandon testified that as soon as she arrived at the scene, “... this young woman walked towards me, and she was crying and she was screaming, she said Joseph Arnold pulled a gun on her, she said he was going to kill her. He was arguing and she thought he was going to kill her. He pulled a gun on her.” This initial exchange lasted “[mjaybe 30 seconds at the most,” during which time Officer Brandon “was telling her to gather herself and slow down.” I agree with the majority that this initial statement, like the 911 call, was nontesti-monial for the reasons that it was not the product of police interrogation, but rather a “cry for help” made while the declarant perceived an emergency and the need for immediate police assistance. In addition, the majority properly affirms the admission of Gordon’s spontaneous statement “that’s him, that’s the guy that pulled the gun on me, Joseph Arnold, that’s him,” on the ground that her exclamation was prompted not by the ex parte questioning of the officers, but rather by defendant’s sudden reappearance and, thus, was nontestimonial. However, I respectfully disagree with the majority’s analysis and resolution of complainant’s on-the-scene statements made in response to police interrogation. What may have started as an emergency police response to a 911 call evolved into a standard police interrogation of a past crime. Between five and fifteen minutes after the 911 call was received, three police officers arrived at the given address and observed a young woman (Gordon), who was near a car parked outside the house, crying and visibly shaken. Although Officer Brandon estimated that the initial conversation between Gordon and the officers lasted approximately 30 seconds, Officer Newberry testified that the investigating officers had a conversation with Gordon lasting “a few minutes,” “maybe five minutes” before defendant arrived on the scene. As previously noted, Gordon told the officers that Arnold had pulled a gun on her during an argument and had threatened to kill her. During her conversation with the officers, Gordon began to calm down, and the officers attempted to elicit a description of the gun from the complainant. As Officer Brandon testified, [W]hen we got there ... we was [sic] trying to get a description of the gun, and she said it was a black gun, a black *200 handgun, which is a very vague description, and we was [sic] trying to decide whether it was a revolver or semiautomatic revolver which would be the gun like you think a cowboy would have where you can spin it out, but a revolver — I mean a semiautomatic gun, most of them are chambered where you pull the hammer back. This is called a hammer, you pull it back, and she made the motion that he did that, which means there would be a round chambered, let us know that it was a semiautomatic black handgun. So that kind of narrowed it down. In response to these questions posed by the officers regarding the weapon allegedly possessed by Arnold, Gordon described the gun as a black handgun. She further described to the officers how defendant stood in the doorway with the gun in his hand and cocked the gun. Based on Gordon’s hand gestures showing how the gun was cocked, the officers concluded the gun was a black semi-automatic handgun that would have a round chambered in it. In my view, the complainant’s description of the gun was testimonial in nature and material in proving the felon in possession of a firearm charge against defendant. Once Gordon was safely in the protective custody of the three police officers, the perceived emergency had ceased. Accordingly, after that point, her responses to questions asked by the police regarding past events were testimonial and therefore subject to defendant’s right to confrontation as guaranteed by the Sixth Amendment. The “safety of the officers” argument posed by the majority is not persuasive. The police knew defendant might be armed. Obtaining a description of the weapon was standard crime investigation. The present case appears to be the scenario envisioned by the Supreme Court in Davis , in which testimonial statements “evolve” from an initial response to an emergency: This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, “evolve into testimonial statements,” [Hammon v. State] 829 N.E.2d [444], at 457 [(Ind.2005)], once that purpose has been achieved. In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, from that point on, McCot-tr/s statements were testimonial, not unlike the “structured police questioning” that occurred in Crawford, 541 U.S., at 53, n. 4 , 124 S.Ct. 1354 [ 158 L.Ed.2d 177 ]. This presents no great problem. Just as, for Fifth Amendment purposes, “police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect,” New York v. Quarles, 467 U.S. 649, 658-659 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984), trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence. Davis’s jury did not hear the complete 911 call, although it may well have heard some testimonial portions. We were *201 asked to classify only McCottry’s early statements identifying Davis as her assailant, and we agree with the Washington Supreme Court that they were not testimonial. That court also concluded that, even if later parts of the call were testimonial, their admission was harmless beyond a reasonable doubt. Davis does not challenge that holding, and we therefore assume it to be correct. Davis, 126 S.Ct. at 2277-78 . Here, Gordon’s past-tense statements describing the weapon, made in the protective presence of three police officers and, conversely, out of defendant’s presence, and given in direct response to the officers’ ex parte questioning, were akin to McCot-try’s later statements described above in Davis , and Amy Hammon’s “narrative of past events ... at some remove in time from the danger she described.” Davis, 126 S.Ct. at 2279 . Gordon’s statements in this regard were therefore testimonial and inadmissible pursuant to the Confrontation Clause of the Sixth Amendment. Having concluded that a confrontation error occurred, the next inquiry is whether the constitutional error is harmless beyond a reasonable doubt. United States v. Robinson, 389 F.3d 582, 593 (6th Cir.2004) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986) and United States v. Askarov, 299 F.3d 896, 898 (6th Cir.2002)). “Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 684 , 106 S.Ct. 1431 . Here, at least with respect to the description of the gun, the error is not harmless beyond a reasonable doubt. Although there was circumstantial evidence connecting defendant to a gun, the prosecution’s case was strengthened considerably by the match of the complainant’s description of the firearm to the black, semi-automatic, loaded handgun found under the seat in the vehicle in which defendant had been sitting. Although complainant Gordon previously told the 911 operator that defendant had threatened her with a gun and exclaimed to the police upon their arrival that defendant “pulled a gun on her,” there was no description of the weapon until police questioning. In the words of Officer Brandon “... we was [sic] trying to get a description of the gun....” Through such questioning, the officers learned from the complainant that the gun was a loaded, black, semi-automatic handgun. In the absence of any corroborative eyewitness testimony or evidence that defendant actually possessed a firearm, the admission into evidence of complainant’s responses to police interrogation asking for a description of the gun was therefore highly prejudicial and violative of defendant’s Sixth Amendment right to confrontation. Moreover, at oral argument, the government conceded that, if a confrontation error occurred with regard to Gordon’s hearsay statements, the error could not be deemed harmless. I accept the government’s concession in this regard and would reverse and remand for a new trial on this basis. II. In Section V, the majority rejects defendant’s challenge relating to impeachment evidence that could have been offered *202 through the testimony of private investigator Sam Lewis. The majority holds that error requiring reversal did not occur because defendant failed to sustain his burden of proving plain error, Fed.R.Evid. 103(d). I agree with the result, but disagree with the majority’s rationale. The record reveals that, after the jury was selected, the government made two motions in limine. The first sought the admission of portions of the 911 taped telephone call. The second requested admission of the on-the-scene hearsay statements made by Tamica Gordon to the police. During oral argument on the government’s motions to admit its evidence, defense counsel advised the court that he had a witness (private investigator Sam Lewis) who was prepared to testify that with regard to Gordon’s repeated claims that defendant had a gun, when talking to investigator Lewis “... she gave a different story.” The court responded “That’s just hearsay. There’s no exception.” Defense counsel later argued that such evidence may be admissible because “... this is along the lines of rebuttal type information.... ” Although a discussion occurred between defense counsel and the trial judge, defense counsel did not move for the admission of the potential impeachment evidence. Accordingly, the trial court did not make a ruling admitting or excluding this evidence. Later, after the government rested its case, the Honorable Jon Phipps MeCalla asked defense counsel “... I thought we had an investigator who was going to testify....” Defense counsel Terrell Harris responded: “No sir, we crossed the investigator yesterday. I knew better to bring him over here after that discussion yesterday.” There was no error regarding the potential impeachment evidence for the reason that there was no motion for a ruling and, thus, no ruling made. Because there was no ruling to appeal, the majority inappropriately strays into a plain error analysis. III. For these reasons, I concur in part and dissent in part. I would reverse and remand for a new trial. . Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations — which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cob-ham that was plainly not the result of sustained questioning. Raleigh's Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant’s 'statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate. . Police investigations themselves are, of course, in no way impugned by our charac *199 terization of their fruits as testimonial. Investigations of past crimes prevent future harms and lead to necessary arrests. While prosecutors may hope that inculpatory "non-testimonial” evidence is gathered, this is essentially beyond police control. Their saying that an emergency exists cannot make it be so. The Confrontation Clause in no way governs police conduct, because it is the trial use of, not the investigatory collection of, ex parte testimonial statements which offends that provision. But neither can police conduct govern the Confrontation Clause; testimonial statements are what they are. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499669. Public record. Not legal advice.