Ennis v. State

Maupin, J.,

with whom Rose, C. J., agrees,

concurring:

I agree with the majority that Crawford v. Washington 1 does not retroactively apply to testimonial hearsay statements admitted in the October 2001 jury trial of this appellant, made final by the lapse of the time within which appellant could have sought certiorari with the United States Supreme Court following his direct appeal.

From 1980 to 2004, pursuant to the Supreme Court decision in Ohio v. Roberts, 2 the admission of such evidence in state and federal prosecutions was determined under two criteria: first, whether the hearsay declarant was unavailable; second, whether the hearsay statement fell within a “firmly rooted” hearsay exception or the statement reflected “particularized guarantees of trustworthiness.” 3 *707 As we noted in Flores v. State, 4 Crawford unwinds the prior analytical framework set forth in Roberts for determining if the admission of testimonial hearsay violates the Confrontation Clause of the Sixth Amendment of the Federal Constitution. 5

In my view, it would be manifestly cataclysmic to a legal system steeped in principles of stare decisis and federalism to retroactively unwind a procedural rule applied in good faith in literally thousands of state prosecutions in Nevada and throughout the United States. I write separately to note that, based upon the strident language in Crawford, the Supreme Court of the United States may very well apply Crawford retroactively in the pending matter of Bockting v. Bayer, 6 now pending before that Court. In his majority opinion in Crawford, Justice Scalia made the following observation:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. . . .

. . . [Thus, w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. 7

The opinion relates at length to the original intent of the framers and concludes emphatically that Roberts was wrongly decided. In doing so, it does not frame the confrontation requirement as a “new rule.” Rather, the opinion implicitly concludes that any confrontation analysis conducted under Roberts during its twenty-four year shelf-life was wrong because Roberts was at odds with the original intent of the framers of the amendment. In this stated construct, the legal system in this country can now assume that the rule in Roberts was never valid. If that is true, Crawford’s restatement of the confrontation rule from its inception is not a new rule of constitutional procedure and cannot be restricted to prospective application starting with cases still pending as of 2004. Certainly, while the United States Court of Appeals for the Tenth Circuit in *708 Brown v. Uphoff 8 correctly noted that “[a] decision by the Supreme Court announces a new rale if ‘the result was not dictated by precedent existing at the time [a] defendant’s conviction [becomes] final,’ ” Crawford cannot be said to be new if the precedent was wrong under originalist constitutional principles. That said, we must await the Supreme Court’s final pronouncement as to whether Crawford must be applied retroactively, or only prospectively from the date dictated by it as a “new” rule.

541 U.S. 36, 59 (2004) (holding that testimonial hearsay statements of a witness who does not appear at trial are inadmissible under the Confrontation Clause of the Sixth Amendment unless the witness is unavailable to testify, and the defendant has had a prior opportunity to cross-examine the witness).

448 U.S. 56 (1980).

Id. at 66 .

121 Nev. 706, 710-11 , 120 P.3d 1170, 1173 (2005).

Made applicable to the states by incorporation through the Fourteenth Amendment in Pointer v. Texas, 380 U.S. 400, 407-08 (1965).

399 F.3d 1010 (9th Cir. 2005), cert. granted, 126 S. Ct. 2017 (2006).

541 U.S. at 68-69 .

381 F.3d 1219, 1226 (10th Cir. 2004) (quoting Butler v. McKellar, 494 U.S. 407, 412 (1990)), cert. denied, 543 U.S. 1079 (2005).