State v. Wright

HUDSON, Judge

(concurring specially in part and dissenting in part).

I concur with the majority’s conclusion that this 911 call is not testimonial evidence under Crawford v. Washington, 124 S.Ct. 1354 (2004). I write separately, however, out of concern that the majority’s opinion may be read to suggest that all 911 calls are by definition not testimonial if they qualify as an excited utterance under Minn. R. Evid. 803(2) (2004). In my judgment, Crawford cannot be read that broadly-

The transcript of the 911 call, which was made immediately after appellant left R.R.’s apartment, plainly demonstrates that R.R. was extremely frightened and concerned for her safety. Significantly, R.R. stated that appellant had the keys to her apartment and that she feared he would return. R.R. simply wanted protection-nothing about the circumstances of the call suggests that she reasonably believed her statements would be available for use at a later trial. Thus, the call was properly admitted under Crawford , not because it was an excited utterance, but because it was not testimonial.

Prior to Crawford , a 911 call would routinely be admitted applying the standards for an excited utterance. Because the excited utterance was a firmly-rooted hearsay exception, it was generally accepted *309 that its admission did not violate the Sixth Amendment’s Confrontation Clause. See White v. Illinois, 502 U.S. 346, 358 , 112 S.Ct. 736, 744 , 116 L.Ed.2d 848 (1992) (holding that Confrontation Clause is not violated when testimonial statements of child/victim of a sexual assault to an investigation police officer were properly admitted as spontaneous declarations). But the majority in Crawford observed the holding in White to be “arguably in tension” with the requirement of a prior opportunity to cross-examine the source of the testimonial hearsay. Craioford, 124 S.Ct. at 1368 n. 8. This is so because, as the majority acknowledges, the relevant inquiry now under Crawford is not whether the 911 call falls into a well-rooted hearsay exception such as the excited utterance exception, but whether the 911 call is testimonial in nature. Id. at 1363-67 . If it is testimonial, it is irrelevant that the statement is also an excited utterance. Id. at 1369-71 .

This distinction is more than just semantics. There will be, for instance, many eases where the 911 caller has multiple expectations and/or motives. In a domestic violence situation, for example, the caller, typically a woman, may genuinely be frightened, but nevertheless fully cognizant that what she says may be used by the state to investigate and prosecute the assailant. This is particularly true when the 911 call occurs hours or days after the assault. Depending on the circumstances, the call may still properly fall within the excited utterance exception. But it may also be testimonial because the caller is more likely to believe and/or understand that her statements will be used at a later trial; indeed that may be the primary purpose for the call. Similarly, some 911 calls are made specifically to invoke the investigation and prosecutorial function of the police. See People v. Cortes, 4 Misc.3d 575 , 781 N.Y.S.2d 401 (2004) (holding that recording of 911 call made by eyewitness to a shooting who was meticulously interrogated by 911 dispatcher was testimonial).

Crawford caused a paradigm shift, and the precise parameters of what constitutes testimonial evidence are unclear. But one thing is clear: reliability is no longer a substitute for cross-examination. Crawford, 124 S.Ct. at 1370 . Therefore, trial courts must evaluate 911 calls on a case-by-case basis and may no longer admit out-of-court statements just because they happen to come within a statutory hearsay exception. Crawford, 124 S.Ct. at 1369 . It is worth noting that the Crawford court recognized a single enduring exception under criminal hearsay law: the dying declaration exception. Id., at 1367 n. 6. Conspicuously omitted was the excited-utterance exception. Thus, Crawford’s holding was absolute: “Where testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 1374 .

The Police Interview

Because the statements made by the victims in their interview with the police were testimonial and provided the police with new information not contained in the 911 call, I respectfully dissent from the majority’s holding that the admission of these statements, even if error, was harmless beyond a reasonable doubt.

The trial court, of course, did not have Crawford before it when it decided to admit the victims’ statements to the police as excited utterances. But based on Crawford , at least three of the cited definitions of “testimonial” evidence apply to the police interview of R.R. and S.R. The statements, taken by trained police officers approximately 30 minutes after the incident, were used for investigatory purposes and to support the complaint filed in this case.

*310 Thus, the statements lie at the core of one definition of “testimonial” evidence cited by Crawford : a formal statement to government officers or statements taken by police officers in the course of interrogation. Crawford, 124 S.Ct. at 1374 .

Initially, the. officers simply asked the victims “what happened.” But it is significant that they responded by giving detailed accounts of the argument leading up to the assault and the assault itself. Equally significant, one of the officers asked S.R. a very specific and critical question — he asked S.R. to describe the gun. In response, S.R. stated that the gun was a “dull silver with black automatic handgun.” This description, which the jury heard only through the hearsay testimony of the police officer, closely matched the gun subsequently admitted into evidence at appellant’s trial. The statement, was plainly testimonial under Crawford , and appellant had a right to cross-examine S.R. concerning it.

Furthermore, there is little doubt that this was an interrogation. While the custodial “interrogation” in Crawford was clearly a formalized process, the Court emphasized that, to the extent that it had defined “testimonial,” it was using “interrogation” in the colloquial, rather than any technical legal, sense. Id. at 1365 n. 4; see The American Heritage Dictionary 9kk (3d ed.1992) (defining “interrogate” as “[t]o examine by questioning formally or officially”). See People v. Zarazua, No. H025472, 2004 WL 837914 , at *1, 4 (Cal.Ct.App. Apr. 20, 2004) (holding that victim’s non-custodial taped interview with police one and one-half hours after “domestic battery” was testimonial). Cf Hammon v. State, 809 N.E.2d 945, 952 (Ind.App.2004) (holding that statements made by victim immediately after the incident, at the scene, in response to informal questioning by police was not testimonial). Moreover, police officers responding to a call are certainly performing “official” duties, even if they are not necessarily “formal” ones. That this was also a standard, official criminal investigation is beyond question. Not only did the officers question the victims, they searched the apartment and took a bag from the front closet, a gun clip that appeared to be for a nine-millimeter handgun, four hollow-point bullets that appeared to be for a nine-millimeter gun, and the broken telephone. With the exception of the bag, all of this evidence was admitted at trial, as well as the nine-millimeter gun police found under the parked car near Wright’s flight path.

The formality of the statements is further evidenced by the fact that the interviews took place approximately 30 minutes after the incident, the officers took notes which they used in their investigation, and the officers testified at the Rasmussen hearing from their notes and subsequent reports, using them to refresh their recollection when necessary. In addition, on cross-examination at the Rasmussen hearing, one of the officers testified that the interviews provided him with sufficient information to make an arrest. That the officers took notes itself suggests that this was not a casual conversation, and thus the statements also fell into a second Crawford example of “testimonial” statements: pretrial statements that the declarant would reasonably expect to be used proseeutorially. Crawford, 124 S.Ct. at 1364 . And even if they were not deemed formal statements, the statements were made under circumstances which would lead an objective witness reasonably to believe that they would be available for use at a later trial— a third definition cited in Crawford. Id.. Unlike the circumstances surrounding the 911 statements, here, the victims, while still understandably upset, knew that the appellant had been apprehended and that they were no' longer in danger; indeed *311 they were sitting in the presence of two police officers. They had had time to reflect on the evening’s events and provided detailed information to the police about the alleged assault — information a reasonable person would expect the government to use in the investigation and prosecution of the appellant.

But even if the time frame had been shorter, as the majority suggests, I believe that these statements were testimonial because (1) they were formal statements given to police officers in the course of interrogation; and (2) appellant had already been arrested and the police had begun gathering and inventorying evidence from the apartment in preparation for trial. Furthermore, while the amount of time that elapsed between the 911 call and the victims’ interview is relevant, it is not dis-positive of whether the statements were testimonial. Crawford makes clear that “[ijnvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.... This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justifiable in other circumstances.” Crawford, 124 S.Ct. at 1367 n. 7. Thus under Crawford , these statements, even if also deemed excited utterances, were testimonial, and the trial court erred in admitting them without affording appellant an opportunity to cross-examine the declarants.

The majority argues that even if it was error to admit the statements, the error was harmless beyond a reasonable doubt because the statements were cumulative to the information provided by the victims in the 911 call, and because other evidence strongly corroborated the 911 call. Confrontation Clause violations are subject to harmless error analysis because “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.” United States v. Nielsen, 371 F.3d 574, 581 (2004) (quoting Delaware v. VanArsdall, 475 U.S. 673, 681 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986)). “Evidence erroneously admitted in violation of the Confrontation Clause must be shown harmless beyond a reasonable doubt, with courts considering the importance of the evidence, whether the evidence was cumulative, the presence of corroborating evidence, and the overall strength of the prosecution’s case.” United States v. Bowman, 215 F.3d 951, 961 (9th Cir.2000) (holding that introduction of co-conspirator’s out-of-court statements was harmless considering the weight of the admissible evidence). See also State v. King, 622 N.W.2d 800, 809 (Minn.2001) (holding that error is harmless beyond a reasonable doubt only if the verdict is “surely unattributable” to the error) (quotation omitted).

’’Although cumulative on some points, the victims’ police interview also provided the state with critical, new information not contained in the 911 calls — information that went directly to the issue of whether appellant intended to cause fear of immediate bodily harm or death; the key element in proving second-degree assault. Even as to the information that was cumulative, the police interviews fleshed out the victims’ 911 statements on several significant points. For example, in the police interview, both victims stated that when appellant pulled the gun on them, they believed the gun was loaded and that he would shoot them. R.R. and S.R. also stated that appellant pointed the gun directly at them and said, “I’ll show you,” and “Little girl, shut your mouth.” Both victims said that they were scared for their lives. None of these statements were in the 911 call, yet they bear directly on whether appellant intended to cause fear of immediate bodily harm or death. Simi *312 larly, S.R. described the gun in the police interview but did not give a description of the gun in the 911 call. This is significant because appellant denied ever having a gun and did not have a gun on him when he was apprehended. Moreover, the police were unable to obtain any fingerprints from the gun found under the parked car and subsequently entered into evidence. In addition, both R.R. and S.R. stated that when S.R. tried to call 911, appellant grabbed the phone from her, pulled the cord out of the wall, and smashed the phone on the ground. None of this information was in the 911 call.

Furthermore, from the trial transcript it is clear that the prosecutor relied heavily on both the 911 call and the police interviews to carry the state’s burden of proving that appellant acted with intent to cause fear of immediate bodily harm or death. Thus, in the prosecutor’s summation, he told the jury that to believe defendant’s testimony that he did not have the gun, the jury would have to reject probative evidence submitted by the state, including R.R.’s and S.R.’s statements to police that the defendant pulled the gun out of the closet and pointed it at them. Similarly, in response to defense counsel’s claim that all the testimony in this case lacked credibility because the defendant never had an opportunity to cross-examine the declarants, the prosecutor repeatedly minimized the necessity for cross-examination by strongly suggesting that the 911 call and the police interview were inherently reliable because they qualified as excited utterances.

Admittedly, other evidence corroborated portions of the 911 call. The phone appellant broke when he snatched it from S.R. was admitted into evidence and appellant admitted smashing the phone because he did not want S.R. to call 911. But this evidence is only tangentially related, if at all, to whether appellant intended to cause fear of immediate bodily harm or death when he pointed the gun at the victims. And the fact that the evidence may be corroborative does not prove that its admission was harmless. See King, 622 N.W.2d at 809 (“inquiry is not ‘whether a jury would have convicted the defendant, rather whether the error reasonably could have [had an impact on] ... the jury’s decision’ ”) (quotation omitted).

Because neither R.R. nor S.R. testified at trial, the state’s entire case rested on the 911 call and the victims’ police interview. The interview elicited new information such as the description of the gun, appellant’s threatening statements, and the victims’ states of mind when the gun was pointed at them. The prosecutor stressed the significance and reliability of the victims’ statements in the 911 call and the police interview. The statements from the police interview were testimonial under Crawford . In addition, they were extremely prejudicial to appellant, especially since the state’s case rested heavily on the credibility of the victims. On this record, admission of the statements from the police interview was not harmless beyond a reasonable doubt, and appellant was denied a fair trial because he was not afforded the opportunity to cross-examine the victims. Accordingly, I would reverse appellant’s conviction of second-degree assault and remand for a new trial.