Opposition Brief — Ohio, Petitioner v. Garry Smith
Supreme Court briefJul 11, 2025
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No. 24-985
_____________
IN THE
SUPREME COURT OF THE UNITED STATES
State of Ohio,
Petitioner,
v.
Garry Smith,
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of Ohio
BRIEF IN OPPOSITION
Erika Cunliffe
Counsel of Record
CUYAHOGA COUNTY PUBLIC DEFENDER’S
OFFICE
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
(216) 443-8353
ecunliffe@cuyahogacounty.gov
QUESTION PRESENTED
Whether the Ohio Supreme Court correctly held that an assault victim’s description
of past criminal conduct, made in response to structured police questioning, was
“testimonial” for purposes of the Confrontation Clause.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED.............................................................................................................................................. i
TABLE OF AUTHORITIES ........................................................................................................................................ iii
STATEMENT OF THE CASE ...................................................................................................................................... 1
A.
Legal Background ................................................................................................................................ 1
B.
Facts and Procedural History ........................................................................................................ 2
REASONS FOR DENYING THE WRIT ................................................................................................................... 8
I.
The State seeks nothing more than factbound error-correction ............................................ 9
II.
There is nothing to be gained by engaging in the factbound analysis the State
asks this Court to undertake ................................................................................................................. 14
III.
The Ohio Supreme Court faithfully applied Crawford and its progeny ............................ 21
IV.
This case provides no opportunity to revisit the Crawford framework more
generally.......................................................................................................................................................... 24
CONCLUSION................................................................................................................................................................ 27
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Bernhardt v. State,
684 N.W.2d 465 (Minn. 2004) ..................................................................................................................... 18
California v. Green,
399 U.S. 149 (1970) ............................................................................................................................................. 1
Coy v. Iowa,
487 U.S. 1012 (1988) ........................................................................................................................................... 1
Crawford v. Washington,
541 U.S. 36 (2004) ........................................................................................ 1, 8, 9, 17, 20, 21, 24, 25, 26
Davis v. Washington,
547 U.S. 813 (2006) ........................................................... 6, 9, 10, 11, 12, 13, 17, 19, 21, 22, 23, 24
Douglas v. Alabama,
380 U.S. 415 (1965) .......................................................................................................................................... 26
Franklin v. New York,
145 S. Ct. 831 (2025) .........................................................................................................................24, 25, 26
Gutierrez v. State,
516 S.W.3d 593 (Tex. App. 2017) ............................................................................................................... 16
Giles v. California,
554 U.S. 353 (2008) .......................................................................................................................................... 19
Johnson v. Commonwealth,
694 S.W.3d 232 (Ky. 2023) ............................................................................................................................ 21
Lee v. Illinois,
476 U.S. 530 (1986) .......................................................................................................................................... 26
Lilly v. Virginia,
527 U.S. 116 (1999) .......................................................................................................................................... 26
Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009) .................................................................................................................................. 12, 17
Michigan v. Bryant,
562 U.S. 344 (2011) ............................................................................................ 11, 12, 15, 20, 21, 22, 23
Motes v. United States,
178 U.S. 458 (1900) .......................................................................................................................................... 26
iv
Ohio v. Clark,
576 U.S. 237 (2015) ...........................................................................................................................16, 20, 24
Ohio v. Roberts,
448 U.S. 56 (1980) ................................................................................................................................................ 1
People v. Wong Ark,
30 P. 1115 (Cal. 1892)...................................................................................................................................... 25
Pointer v. Texas,
380 U.S. 400 (1965) ............................................................................................................................................. 1
State v. Davis,
64 P.3d 661 (Wash. Ct. App. 2003) ............................................................................................................... 9
State v. Lopez-Ramos,
929 N.W.2d 414 (Minn. 2019) ..................................................................................................................... 18
State v. Richards,
928 N.W.2d 158 (Iowa App. 2019) ............................................................................................................ 17
State v. Sheppard,
327 A.3d 1144 (Me. 2024) ............................................................................................................................. 14
State v. Slater,
939 A.2d 1105 (Conn. 2008)......................................................................................................................... 16
State v. Tapper,
993 N.W.2d 432 (Minn. 2023) ..................................................................................................................... 18
State v. Wilcox,
2024 WL 5049115 (Ohio Dec. 10, 2024) ................................................................................................ 16
United States v. Graham,
47 F.4th 561 (7th Cir. 2022) ......................................................................................................................... 21
United States v. Johnson,
117 F.4th 28 (2d Cir. 2024) ........................................................................................................................... 16
United States v. Latu,
46 F.4th 1175 (9th Cir. 2022)....................................................................................................................... 16
United States v. Lundy,
83 F.4th 615 (6th Cir. 2023) ................................................................................................. 15, 16, 17, 21,
United States v. Mitchell,
726 Fed. Appx. 498 (8th Cir. 2018) ........................................................................................................... 18
United States v. Robertson,
948 F.3d 912 (8th Cir. 2020) ................................................................................................................ 17, 18
v
United States v. Tuttle,
837 Fed. Appx. 391 (6th Cir. 2020) ........................................................................................................... 21
Wright v. State,
434 S.W.3d 401 (Ark. App. 2014) ............................................................................................................... 16
Constitutional Provisions
U.S. Const., amend. VI ..................................................................................................................................... 1, 4, 25
U.S. Const., amend. VI, Confrontation Clause
................................................................................................................. 1, 4, 5, 6, 8, 9, 17, 18, 19, 24, 25, 26
Statutes
Ohio Rev. Code § 2919.25 ......................................................................................................................................... 3
Rules
S. Ct. R. 10....................................................................................................................................................................... 16
Other Authorities
Fisher, Jeffrey L., What Happened—and What is Happening—to the Confrontation
Clause?, Brook. L. Sch. J. L. & Pol’y 587 (2007) ..................................................................................... 25
STATEMENT OF THE CASE
A. Legal Background
The Sixth Amendment guarantees the accused the right “to be confronted with the
witnesses against him.” U.S. Const. amend. VI. At its heart, the Confrontation Clause requires
the prosecution to subject its witnesses to “testing in the crucible of cross-examination,”
Crawford v. Washington, 541 U.S. 36, 61 (2004)—a process this Court has called the “greatest
legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158
(1970) (citation omitted). The Confrontation Clause also ensures that no one will be
criminally punished based on accusations procured by government officers outside of a
courtroom, beyond the presence of the defendant and the jury. See, e.g., Coy v. Iowa, 487 U.S.
1012, 1016-17 (1988); Pointer v. Texas, 380 U.S. 400, 404 (1965).
Decades ago, the Court adopted an approach to the Clause that asked—
notwithstanding the Clause’s categorical demand—whether out-of-court accusations
covered by the Clause were sufficiently “reliable” to dispense with the need for crossexamination. See Ohio v. Roberts, 448 U.S. 56 (1980). In Crawford v. Washington, 541 U.S. 36
(2004), the Court repudiated that approach and returned to the Confrontation Clause’s
original meaning. Focusing on the Sixth Amendment’s word “witnesses,” and stressing that
witnesses are individuals who provide testimony, the Court held: “Where testimonial
statements are at issue, the only indicium of reliability sufficient to satisfy constitutional
demands is the one the Constitution actually prescribes: confrontation.” Id. at 68-69
(emphasis added). Consequently, out-of-court testimonial statements are inadmissible
against criminal defendants unless the declarant actually takes the stand at trial—or the
1
declarant is unavailable and the defendant had a prior opportunity for cross-examination.
Id. at 53-54.
B. Facts and Procedural History
1. In March of 2020, Officer Brandon Soucek and his partner responded to a dispatch
call “for a female assaulted.” Pet. App. 5a. Officer Soucek arrived at the scene in East
Cleveland, Ohio and activated his body camera. Id. The victim, B.B., and two EMTs were
walking from the front porch of a house to an ambulance. Id.
Officer Soucek approached the ambulance while his partner questioned a witness
outside. Pet. App. 5a-6a. The witness explained that she “called EMS because [B.B.] came on
[her] doorstep.” Id.
Officer Soucek entered the ambulance and asked B.B., who was now sitting down, “So
what happened?” Pet. App. 6a. “B.B. told him that her fiancé had beaten her up because she
had had an argument with his niece and that her fiancé had ripped out her hair.” Id. 6a.
Officer Soucek then posed a series of questions. He asked whether B.B. and her fiancé
lived together; where the assault happened; and for her Social Security number, name, and
date of birth. Pet. App. 6a-7a. During this “calm” encounter, id. 19a, B.B. asserted that the
altercation happened “down the street” and that her fiancé “drove away” and “left,” id. 7a.
She also noted that they had been drinking. Id. Officer Soucek then asked for the name of
B.B.’s fiancé. Id. 8a. She responded by identifying respondent Garry Smith. Id. B.B. specified
that his name was spelled with “two r’s.” Id. Officer Soucek asked for respondent’s date of
birth and address. Id.
While Officer Soucek questioned B.B., the EMTs interjected with their own questions,
including about the fact she was pregnant. Pet. App. 8a. While attending to B.B., one of the
2
EMTs asked if, in addition to drinking, she had ingested any other substance. Id. 9a. B.B.
shushed him twice. Id. She eventually responded, “I snorted a couple lines of cocaine.” Id.
When Officer Soucek completed his questioning, he exited the ambulance, and the
ambulance drove away. Id. 10a.
Upon arrival at the hospital, B.B. was under the influence of drugs and alcohol to such
an extent that she could not be properly assessed. The medical staff kept B.B. in the
emergency department so that they could do a “sober re-eval” after the drugs and alcohol
wore off. Tr. Ex. 10 at 7.
The next day, B.B. called respondent and asked him to drive her home from the
hospital. Pet. App. 82-83a. He did so. Id.
2. The State indicted respondent on two counts of domestic violence under Ohio Rev.
Code § 2919.25. Pet. App. 3a. He “pled not guilty to all charges” and maintained that B.B.
must have sustained her injuries by getting into a fight with another woman. Id. 57a, 82a.
He said he had been at the house only earlier in the day and that B.B. had been “fine” when
he had left. Id. 11a.
Prior to the trial, respondent suspected the State might try to proceed without calling
B.B. as a witness. Among other things, B.B. had outstanding warrants for her own arrest for
domestic violence and child endangerment. See State v. B[.] (No. CR-21-661365). She also
had a record of evading the criminal justice system.1 Respondent accordingly filed a motion
in limine to “preclude the state from introducing evidence of (among other things) [B.B.’s]
1 B.B. had been arrested in July 2021 after she allegedly “strangled, punched and attempted
to hit” her fifteen-year-old daughter with a “box fan and broom.” Case Information Form,
State v. B[.] (No. CR-21-661365). After her release on bond, she failed to appear in court two
months later, and the court revoked her bond. Id. B.B. was taken back into custody in
September 2023. Id.
3
out-of-court statements” without calling her to the stand. Pet. App. 58a. He argued that
admitting those statements would violate the Sixth Amendment’s Confrontation Clause and
the Ohio Rules of Evidence. Id. The State asserted that “it had subpoenaed” B.B. and that, even
if she did not appear, “her statements would nevertheless be admissible.” Id. 59-60a. The
court partially sided with the State, holding that B.B.’s statements were nontestimonial
under the Confrontation Clause and deferring any ruling on their admissibility under state
law. Id. 62a-63a.
B.B. did not appear at trial, and the State did not request a bench warrant demanding
she appear. Pet. App. 63a n.4. Explaining this decision at the intermediate appellate court,
the State pointed out that “it can be ‘easier to go without the victim in these cases.’” Id. 103a
(citation omitted).
Accordingly, the State sought to prove the charges against respondent by offering
B.B.’s statements in the ambulance, as captured by Officer Soucek’s notes and body camera
footage. Pet. App. 5a. Respondent renewed his objections to the State’s use of B.B.’s out-ofcourt statements. Id. 5a, 11a. However, the court overruled these objections and admitted
the statements as “excited utterances” under state hearsay law. Id. 11a.
During the bench trial, the prosecution wove together the body camera video of B.B.’s
statements and Officer Soucek’s live testimony. Pet. App. 5a-7a, 64a-68a. “Rather than
having Soucek testify based on his own recollection of events, the [S]tate asked Soucek to
describe what he observed on the body camera footage and, at times, to repeat what [B.B.]
had said as heard on the body camera footage while the trial court viewed the body camera
footage.” Id. 65a.
4
Beyond Officer Soucek, the only live witnesses for the prosecution were three other
police officers, a 911 dispatcher, and a Cleveland police detective. Pet. App. 63a-64a.
Although B.B. indicated that several witnesses had observed the altercation, there is also “no
evidence” that prosecutors or police “attempted to locate or interview” any of those
eyewitnesses. Id. 71a n.7. So the only evidence that respondent was the one who inflicted
B.B.’s injuries came from B.B.’s out-of-court statements.
The judge found respondent guilty. Pet. App. 83a. After the verdict was entered, B.B.
sent “a text message to be read at sentencing, requesting leniency.” Id. The judge sentenced
respondent to twelve months on each count to be served concurrently. Id. 84a.
3. Respondent appealed to the Court of Appeals for Ohio’s Eighth District, arguing that
the trial court had erred on both Confrontation Clause and state hearsay grounds when it
admitted B.B.’s out-of-court statements in the ambulance. Pet. App. 55a-56a. The court of
appeals agreed with respondent’s Confrontation Clause claim, holding that B.B.’s statements
to both Officer Soucek and the EMT were testimonial. Id. 105a. The court of appeals also held
that admitting this evidence had not been harmless error, in part because “presenting [B.B.’s]
testimony live (rather than through body camera footage) and subjecting her to crossexamination may very well have weakened the state’s case.” Id. 104a; see also id. 109a.
Accordingly, the court of appeals vacated respondent’s convictions and remanded for a new
trial. Id. 110a. It did not reach whether B.B.’s statements were also inadmissible on hearsay
grounds. Id.
4. The State appealed to the Ohio Supreme Court, arguing that the intermediate
appellate court erred in finding B.B.’s statements in the ambulance inadmissible under the
Confrontation Clause. Pet. App. 2a. To address that claim, the Ohio Supreme Court turned to
5
this Court’s jurisprudence governing when allegations of criminal conduct to police officers
or other first responders are testimonial. Such statements, the Ohio Supreme Court
explained, “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.” Id. 15a (quoting Davis v.
Washington, 547 U.S. 813, 822 (2006)). On the other hand, statements “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. (quoting Davis, 547 U.S. at 822).
Applying that dichotomy, and agreeing with the intermediate appellate court, the
Ohio Supreme Court held that B.B.’s statements to Officer Soucek were testimonial because
they were given to further the investigation of the crime rather than to stem an ongoing
emergency. Pet. App. 2a. The Court reasoned that, from Officer Soucek’s standpoint, the
circumstances of the encounter—including the “calm scene” and the fact that B.B. was
already safely in the back of the ambulance—indicated that there was no “active threat
against the victim.” Id. 19a. Likewise, nothing gave him any reason to believe that Smith was
a threat to members of the broader public. Id. 20a. Nor did Officer Soucek ask B.B. “whether
Smith had a weapon” or any other question designed to address any ongoing threat. Id.
From B.B.’s standpoint, the analysis was much the same. She “knew that Smith was
not a threat to her at the time of the police interrogation,” as evidenced by the fact that she
spoke to Soucek about the incident “without reservation.” Pet. App. 22a. And to the extent
that she displayed hesitancy to disclose “her own criminal activity in front of a police officer,”
that only further “demonstrate[d] that she had a testimonial intent.” Id. Likewise, the Court
6
reasoned that the relative formality of the questioning while pinning down “what had
happened” further cemented that B.B.’s statements to the police were testimonial. Id. 22a23a.
At the same time, the Ohio Supreme Court held that B.B.’s statements made to the
EMT were not testimonial, reasoning that the statements were made “for purposes of
medical diagnosis” rather than to establish past events to aid law enforcement. Pet. App. 24a.
The court then left it to the intermediate appellate court to address on remand whether the
nontestimonial statements to the EMT were admissible under state hearsay law. Id. 25a. The
Ohio Supreme Court directed the lower court, if necessary, to conduct a new harmless error
analysis and address Smith’s additional claims. Id.
Three justices concurred in part and dissented in part. Pet. App. 25a. These justices
agreed that “B.B.’s statements after Officer Soucek asked for her Social Security number were
testimonial and should have been excluded from evidence at Smith’s trial.” Id. 33a-34a. In
addition, these justices agreed with the majority that the statements to the EMT were
nontestimonial. Id. 34a. But these justices believed that Officer Soucek could not yet rule out
the existence of an ongoing emergency during the first part of his interview of B.B. Id. 32a33a. Thus, the justices would have found B.B.’s answers before she clarified that respondent
had left the area to be nontestimonial. Id.
REASONS FOR DENYING THE WRIT
The State asks this Court to decide whether B.B.’s statement to the responding police
officer that accused respondent of assaulting her was “testimonial” under the Confrontation
Clause. But Crawford v. Washington, 541 U.S. 36 (2004), and its progeny provide a
comprehensive framework governing whether out-of-court statements to responding
7
officers are testimonial, and the Court has already applied that framework multiple times to
similar such accusations of domestic violence. The Ohio Supreme Court’s factbound
application of that framework does not warrant this Court’s attention. The State cannot point
to any jurisdiction that would have decided this case differently. Respondent’s confrontation
claim here raises no unanswered issue of importance that transcends this case. And the Ohio
Supreme Court properly applied the governing framework to the particular facts here.
Finally, this petition provides no occasion to reconsider any aspect of the Crawford doctrine
or this Court’s confrontation jurisprudence more generally. Certiorari should be denied.
I.
The State seeks nothing more than factbound error-correction.
The Court has applied its modern Confrontation Clause doctrine numerous times in
the context of fresh reports of criminal activity, including accusations of domestic violence.
The Ohio Supreme Court did nothing more here than apply that well-established framework.
1. In this Court’s seminal decision in Crawford, it held that the Confrontation Clause
generally prohibits the admission of out-of-court “testimonial” statements unless the
declarant is unavailable and the defendant had a prior opportunity for cross-examination.
541 U.S. at 59. The testimonial approach, the Court explained, does not turn on the “vagaries
of the rules of evidence.” Id. at 61. Instead, it is keyed to whether the declarant of an out-ofcourt statement was acting like a “witness,” U.S. Const. amend. VI—that is, making
statements to establish past facts for law enforcement use. Crawford, 541 U.S. at 51.
In the years since Crawford, the Court has refined the definition of “testimonial”
statements. Most notably, in an opinion styled Davis v. Washington, 547 U.S. 813 (2006), the
Court decided two cases in tandem: Davis itself and Hammon v. Indiana. Both cases involved
accusations of domestic violence that were admitted under state hearsay law as excited
8
utterances. Davis, 547 U.S. at 820; State v. Davis, 64 P.3d 661, 664 (Wash. Ct. App. 2003). In
Hammon, police “responded to a ‘reported domestic disturbance’ at the home of Hershel and
Amy Hammon.” Davis, 547 U.S. at 819. Officers kept the couple separated, interviewing Amy
in the living room to establish “what had happened.” Id. at 819-20. In Davis, a woman called
911 to report that she was “involved in a domestic disturbance with her former boyfriend.”
Id. at 818.
The Court set forth the following to resolve those cases: “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.” Davis, 547 U.S. at 822. Applying that “primary purpose” framework, the Court
then held that Amy Hammon’s statements were testimonial, whereas the declarant’s initial
statements in Davis to the 911 operator were nontestimonial. Id. at 828-30. (The Court
suggested that statements later in the 911 call might have been testimonial, but it did not
resolve that question. Id. at 828-29.)
In Hammon, “[t]here was no emergency in progress” when the victim accused the
defendant of assaulting her. 547 U.S. at 829. Instead, the victim’s statements were given after
the altercation was over, while the victim was safely in the presence of the investigating
officer. Id. at 830. The Court explained that under those circumstances, Amy Hammon’s
statements were “an obvious substitute for live testimony, because they d[id] precisely what
9
a witness does on direct examination”: they “deliberately recounted,” in response to official
questioning, “how potentially criminal past events began and progressed.” Id. at 830.
By contrast, in Davis, the questions asked and answered “were necessary to be able
to resolve [a] present emergency.” 547 U.S. at 827. That was because the situation was much
more fluid when the 911 call began. No officer was yet at the scene; indeed, the whole point
of the call was to summon a police response because, in the victim’s words, the defendant
was there “jumpin[g] on [her] again.” Id. at 817; see also id. at 827 (victim was describing
events “as they were actually happening”). Accordingly, the victim’s 911 “call was plainly a
call for help against bona fide physical threat,” not an attempt to document past events in a
witness-like manner. Id. at 827.
The formality of the statements in the two cases differed as well. In Hammon, the
context was “formal enough” because the victim’s “interrogation was conducted in a separate
room, away from her husband (who tried to intervene), with the officer receiving her replies
for use in his ‘investigat[ion].’” 547 U.S. at 830. In Davis, by contrast, the victim’s “frantic
answers were provided over the phone, in an environment that was not tranquil, or even (as
far as any reasonable 911 operator could make out) safe.” Id. at 827. As the Court put it, “no
‘witness’ goes into court to proclaim an emergency and seek help.” Id. at 828.
In Michigan v. Bryant, 562 U.S. 344 (2011), the Court applied Davis’s “primary
purpose” test in yet another context. In that case, the victim of a “nondomestic” dispute was
found suffering from a fatal gunshot wound. The perpetrator was at large, his identity and
location unknown. Id. at 359. The victim identified his assailant to a responding police officer,
and the trial court admitted that statement as an excited utterance. Id. at 351 n.1. This Court
held that the statement was nontestimonial. Distinguishing both Davis and Hammon, the
10
Court reasoned that a gunman on the loose presents a threat to the “police and public” that
a private domestic assault does not. Id. at 363. As such, even though the victim’s statement
described past events, its primary purpose was still to help resolve an ongoing “threat to first
responders and the public,” not to provide evidence for a later prosecution. Id.
The Court in Bryant also observed that the “logic” underlying this “ongoing
emergency” analysis was “not unlike that justifying the excited utterance exception in
hearsay law.” 562 U.S. at 361. Excited utterances are often nontestimonial because “a
startling event or condition” tends to “focus[] the mind” on an ongoing emergency, instead
of on bearing witness. Id. The Court added that “[m]any other exceptions to the hearsay rules
similarly rest on the belief that certain statements are, by their nature, made for a purpose
other than use in a prosecution and therefore should not be barred by hearsay prohibitions.”
Id. at 362 n.9; see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009) (explaining
that “[b]usiness and public records are generally admissible” because they are not typically
created “for the purpose of establishing or proving some fact at trial”).
At the same time, the Bryant Court also reaffirmed its holding in Hammon that a
statement recounting a past domestic assault to a responding officer is testimonial. 562 U.S.
at 365. Even if the perpetrator of such an incident has fled the scene, a perpetrator who is
not “armed with a gun” typically poses “little prospect of [] a threat to the public.” Id. at 36465. Accordingly, statements the victim makes in that context—particularly in response to
police questioning—remain focused on “establish[ing] or prov[ing] past events potentially
relevant to later criminal prosecution” and thus are testimonial. Id. at 356 (quoting Davis,
547 U.S. at 822).
11
2. In holding that B.B.’s answers to the responding officer’s questions here were
testimonial, the Ohio Supreme Court did nothing more here than apply this well-established
precedent. The officer’s very first question—“what happened?”— was past tense.
Pet. App. 6a. The Ohio Supreme Court thus emphasized that, just as in Hammon, the
responding officer interviewed B.B. after the events in question had concluded. Id. 5a-7a.
The Ohio Supreme Court also carefully considered whether an ongoing emergency
nonetheless existed. It noted that, during the interview, B.B. “knew that [respondent] was
not a threat to her.” Pet. App. 22a. She was safely in the presence of the police officer. Id. 7a.
Nor, the Ohio Supreme Court explained, did Officer Soucek have any reason to perceive an
ongoing threat: B.B.’s answers to his questions here were “far from the harried 911 call that
was at issue in Davis.” Id. 22a. Just as in Hammon, the interview took place during a “calm
scene,” and Officer Soucek took notes to document his interaction with B.B for evidentiary
purposes. See id. 5a-6a.
Lastly, the Ohio Supreme Court observed that B.B.’s recorded responses were “an
obvious substitute for live testimony, because they d[id] precisely what a witness does on
direct examination.” Pet. App. 22a (quoting Davis, 547 U.S. at 830). Just as in Hammon, they
“deliberately recounted,” in response to official questioning, “how potentially criminal past
events began and progressed.” Davis, 547 U.S. at 830.
II.
There is nothing to be gained by engaging in the factbound analysis the State
asks this Court to undertake.
The State advances three reasons for granting review to apply the already well-
established primary-purpose framework to the specific facts here. None withstands scrutiny.
1. The State first tries to conjure up splits of authority in the lower courts—one
regarding the “ongoing emergency” aspect of the “primary purpose” test and another
12
regarding the relationship between the confrontation right and hearsay law. But neither
attempt is successful.
a. Ongoing emergency. The State contends that the Ohio Supreme Court’s
determination that no ongoing emergency existed while Officer Soucek questioned B.B.
conflicts with the Maine Supreme Court’s decision in State v. Sheppard, 327 A.3d 1144 (Me.
2024), and a handful of other cases. Pet. 16-21. The State is wrong.
In Sheppard, a police officer was driving “on routine patrol” when he noticed a woman
on the street. 327 A.3d at 1146. She was crying and bleeding and looked “scared.” Id.; see also
id. at 1148. “Within ten seconds of becoming aware that [the officer] was present and before
he could ask a single question,” the woman made a “spontaneous” statement that “her
boyfriend . . . had beat her up.” Id. at 1146, 1151. The officer later recounted the statement
from memory; he never created a written record of it. See id. at 1147-48. The Maine Supreme
Judicial Court held that the victim’s statement was nontestimonial because its primary
purpose was to “resolv[e] a current and ongoing emergency,” rather than “giv[e] evidence
against Sheppard.” Id. at 1157. In reaching this conclusion, the court stressed that the officer
was not conducting any investigation when he happened upon the victim. Nor did he engage
in any “structured police questioning.” Id. at 1152. Instead, he simply received an
“unsolicited” statement regarding a continuing physical threat. Id. at 1155.
The facts here are quite different. Officer Soucek was not on routine patrol and did
not receive any sort of spontaneous statement. Rather, he “received a dispatch call to a home
‘for a female assaulted’” and then “respond[ed]” to the scene of that suspected crime.
Pet. App. 5a. Upon arrival, he “began to interview [B.B.] about the incident.” Id. 19a. He
started by inquiring, “So what happened?” Id. 20a. He continued by asking B.B. a series of
13
questions—much like would occur in a stationhouse interview or deposition—over the
course of several minutes. Id. 5a-10a. These questions ranged from whether respondent
lived with her to what the digits of her Social Security number were. Id. 6a-7a. Officer Soucek
“actively t[ook] handwritten notes of B.B.’s answers.” Id. 23a. The Ohio Supreme Court
accordingly found that the primary purpose of the statement “was not to aid in the officer’s
response to an ongoing emergency but rather, to tell [B.B.’s] account of the incident” to aid a
potential prosecution. Id. 22a.
None of the additional cases the State quickly references conflicts with the decision
below either. In United States v. Lundy, 83 F.4th 615 (6th Cir. 2023), the Sixth Circuit held
that a victim’s statements to police were nontestimonial because a “convicted and armed
felon” had pointed his gun at her just before the officers arrived, and the perpetrator’s
“location was unknown” at the time of her statement. Id. at 621. That reasoning is
inapplicable here. “[W]hether an emergency exists and is ongoing is a highly contextdependent inquiry.” Bryant, 562 U.S. at 363. And cases in which dangerous gunmen are on
the loose are different from those in which suspected victims of domestic violence tell
investigating officers that their “assailants used their fists.” Id. at 364. In the former situation,
there is an ongoing threat to public safety even when the victim is safely in the presence of
police officers. Id. at 372-74.2
In other cases the State cites, the statements at issue were made to private actors, not
police officers. See United States v. Johnson, 117 F.4th 28 (2d Cir. 2024) (statement to the
2 The Ohio Supreme Court’s recent decision in State v. Wilcox, 2024 WL 5049115
(Ohio Dec. 10, 2024), confirms that it understands the difference between cases like Lundy
and this one. In Wilcox, the court held that statements to a responding officer were
nontestimonial when a shooting suspect was still at large. Id. at *3.
14
director of corporate security at Fox Corporation); United States v. Latu, 46 F.4th 1175 (9th
Cir. 2022) (statements to a nurse and doctor responsible for treating the victim’s broken
jaw); State v. Slater, 939 A.2d 1105 (Conn. 2008) (statements to two strangers on the street
and to a nurse and doctor at the hospital). Statements to such private individuals “are much
less likely to be testimonial than statements to law enforcement officers” because they are
much less likely to have prosecutorial purposes. Ohio v. Clark, 576 U.S. 237, 246 (2015).
Finally, the three decisions the State cites from intermediate state appellate courts
(one of which is unpublished) do not establish any conflict either. Contra Pet. 19. State
intermediate court decisions cannot contribute to a conflict of authority. See S. Ct. R. 10. In
any event, the courts in Gutierrez v. State, 516 S.W.3d 593 (Tex. App. 2017), and Wright v.
State, 434 S.W.3d 401 (Ark. App. 2014), concluded that the statements at issue were
testimonial, the same bottom-line outcome reached by the Ohio Supreme Court here with
respect to B.B.’s statements to Officer Soucek. And in State v. Richards, 928 N.W.2d 158 (Iowa
App. 2019), the court held that the statement was nontestimonial because—as in Bryant and
Lundy, but unlike here—it was taken to help find and apprehend an individual whom the
police believed to be armed.
b. Hearsay law. The State also makes much of the fact that the Ohio Supreme Court
held that B.B.’s statements to Officer Soucek were testimonial without ruling on whether
they fell within the “excited utterance” exception to the rule against hearsay. Pet. 29; see also
Pet. App. 13a n.2. The State argues that this approach implicates a conflict over how the
Crawford framework interacts with hearsay law. Pet. 28-29. In reality, there is no conflict.
To start, nearly all of the cases the State cites were decided between 1999 and 2006—
before this Court held in Davis that the Confrontation Clause barred the admission of Amy
15
Hammon’s out-of-court statement even though it had been admitted as an excited utterance.
547 U.S. at 821. Those decades-old lower court decisions also predate this Court’s
subsequent decisions in Bryant and Melendez-Diaz, which further fleshed out the
relationship between confrontation and hearsay law. See supra at 12. Those lower court
decisions, therefore, are too old to contribute to any split under this Court’s present
jurisprudence.
Neither of the two more recent lower court decisions the State cites conflicts with the
holding below either. The State first asserts that the Eighth Circuit has adopted a “categorical
approach” under which “excited utterances are never testimonial.” Pet. 28 (citing United
States v. Robertson, 948 F.3d 912 (8th Cir. 2020)). Such a rule would run directly afoul of
Davis—and, not surprisingly, the Eighth Circuit in Robinson issued no such holding. Instead,
the Eighth Circuit held that the statement was nontestimonial in part because it “was
intended to help police ‘identify and apprehend an armed, threatening individual’”—a factor
having nothing to do with an excited-utterance analysis. Robinson, 948 F.3d at 917 (quoting
United States v. Mitchell, 726 Fed. Appx. 498, 502 (8th Cir. 2018)). The Ohio Supreme Court,
by contrast, emphasized that B.B.’s statement was made to establish past events relevant to
a potential criminal prosecution, not to enable the police to quell “any possible threat” to
public safety. Pet. App. 20a.
The State also claims that the decision below conflicts with decisions from the
Minnesota Supreme Court in which that court addressed whether statements at issue fell
within a hearsay exception before considering Confrontation Clause arguments. Pet. 29.
(citing State v. Tapper, 993 N.W.2d 432 (Minn. 2023), and Bernhardt v. State, 684 N.W.2d 465
(Minn. 2004)). But the Minnesota Supreme Court has not adopted a definitive order of
16
operations when evaluating Confrontation Clause and hearsay challenges. In State v. LopezRamos, 929 N.W.2d 414 (Minn. 2019), for example, the court began by considering the
Confrontation Clause. Id. at 417-23. Nor has the Ohio Supreme Court established any rigid
order of operations. The Ohio Supreme Court began here with the Confrontation Clause
because the sole question before the court was whether B.B.’s statements were testimonial.
Pet. App. 14a. And that court opined merely that the intermediate appellate court’s choice to
analyze respondent’s Confrontation Clause challenge before his hearsay challenge was
“reasonable”—not that it was somehow required. Id. 13a n.2.
This case-by-case variance makes sense. An out-of-court statement the prosecution
offers in a criminal case must satisfy both evidence law and confrontation law to be
admissible. And just like this Court, state high courts may exercise discretion in determining
which questions they will hear and the order in which they will address the questions before
them. Indeed, it would be “heavy-handed” and “paradoxical” for this Court to dictate the
“sequence” in which state courts address questions. Jeffrey Sutton, 51 Imperfect Solutions:
States and the Making of American Constitutional Law 202 (2018).
2. The State next argues that “domestic violence is a pervasive problem” that
sometimes justifies prosecutions without presenting in-court testimony from complaining
witnesses. Pet. 31. No one disputes the importance of combating domestic violence. But this
Court has already addressed the impact of the Confrontation Clause on such prosecutions. In
Davis, the parties and various amici asked this Court to allow for “greater flexibility” in the
use of testimonial evidence in domestic violence prosecutions without calling complaining
witnesses to the stand. 547 U.S. at 832-33. But this Court declined that invitation, reasoning
that allowing enhanced use of out-of-court accusations in that setting would inappropriately
17
“vitiate constitutional guarantees” in the name of law enforcement efficiency. Id. Two years
later, the Court reiterated that while “[d]omestic violence is an intolerable offense,” the
judicial system may not “abridg[e] the constitutional rights of criminal defendants” to
facilitate such prosecutions. Giles v. California, 554 U.S. 353, 376 (2008).
The State relatedly asserts that “[d]omestic violence abusers can pose dangers to the
public including innocent bystanders” until they are apprehended. Pet. 33. But the Court’s
confrontation jurisprudence already accounts for that as well. In Bryant, the Court made
clear that “[a]n assessment of whether an emergency that threatens the police and public is
ongoing cannot narrowly focus on whether the threat solely to the first victim has been
neutralized because the threat to the first responders and public may continue.” 562 U.S. at
363. So if, under the facts of a particular domestic-violence investigation, an assailant who
has fled still poses a genuine threat to others, a statement to a responding officer may well
be nontestimonial. And even if it is not, other “statements to friends and neighbors about
[domestic] abuse and intimidation” are likely to be nontestimonial. Giles, 554 U.S. at 376; see
also Clark, 576 U.S. at 249 (statements recounting abuse to “individuals who are not law
enforcement officers” are much less likely to be testimonial).
That being said, domestic violence incidents sometimes “have a narrower zone of
potential victims” than other violent crimes, thereby rendering accusations to responding
officers less likely to be nontestimonial. Bryant, 562 U.S. at 363-64. But that is simply a
function of this Court’s “highly context-dependent inquiry” for when an ongoing emergency
exists. Id. at 363.
3. Finally, the State suggests that the “increased implementation of body worn
cameras,” as in this case, supports this Court’s intervention here. Pet. 34. Yet the State does
18
not argue that bodycams should or could change the legal analysis under Crawford and its
progeny in any meaningful way. Nor is there anything about bodycams that makes
statements more likely to be nontestimonial. In fact, lower courts have routinely applied the
Davis framework to bodycam footage without any difficulty. See, e.g., United States v. Tuttle,
837 Fed. Appx. 391, 393-95 (6th Cir. 2020); United States v. Lundy, 83 F.4th 615, 617-21 (6th
Cir. 2023); United States v. Graham, 47 F.4th 561, 568-70 (7th Cir. 2022); Johnson v.
Commonwealth, 694 S.W.3d 232, 244-51 (Ky. 2023). Accordingly, the fact that video footage
exists here creates no need for this Court to grant certiorari in this factbound case.
III.
The Ohio Supreme Court faithfully applied Crawford and its progeny.
The State’s attacks on the Ohio Supreme Court’s application of the primary purpose
framework are also unavailing.
1. The State first argues that the Ohio Supreme Court ignored a grab bag of relevant
facts when conducting “its inquiry into the existence of an ongoing emergency.” Pet. 21-23.
But nothing the State highlights rendered B.B.’s statements to Officer Soucek nontestimonial.
To begin, the State argues that the Ohio Supreme Court’s primary-purpose analysis
failed to properly account for the fact that B.B.’s assailant had “left the area” when she spoke
to Officer Soucek. Pet. 21. But, contrary to the State’s contention, (Pet. 15) the Court in Bryant
did not categorically distinguish the circumstances in Hammon from “situations involving
suspects at large.” The Bryant Court explained that the “primary purpose” test is “highly
context-dependent.” 562 U.S. at 363. And “the duration and scope of an emergency may
depend in part on the type of weapon employed.” Id. at 364. In Bryant, it was the
perpetrator’s use of a gun—not the mere fact that the perpetrator was on the loose when the
19
police responded—that “extend[ed]” the emergency “beyond an initial victim . . . to the
responding police and the public.” Id. at 359; see also id. at 373-74.
That reasoning does not apply here. There was no shooting, and Officer Soucek had
no reason to believe the perpetrator had a weapon. See Pet. App. 20a.3 Instead, the attacker
here used only “fists” to harm B.B.—exactly the kind of assault that the Bryant Court
distinguished from a shooting and explained is unlikely to give rise to an ongoing emergency
even while the perpetrator is at large. 562 U.S. at 364.
In addition, the State is wrong (Pet. 22) that the fact that B.B. was receiving medical
treatment while she answered Officer Soucek’s questions rendered her statements to him
nontestimonial. The Court in Bryant explained that “the medical condition of the victim” is
relevant insofar as “a severely injured victim may have no purpose at all in answering
questions posed; the answers [to an officer’s questions] may be simply reflexive.” 562 U.S. at
364-65, 368-69. Such was true in light of the victim’s mortal gunshot wounds in Bryant. By
contrast, Davis and Hammon “did not present medical emergencies, despite some injuries to
the victims.” Id. at 364.
This case falls into the latter category. There is nothing in B.B.’s interactions with
Officer Soucek to suggest that she was incapable of having any purpose. To the contrary, she
had sufficient wherewithal to shush the EMT (twice) when he asked about her drug use.
Pet. App. 9a. As the Ohio Supreme Court recognized, this “selective disclosure of information
and hesitancy to admit her own criminal activity in front of a police officer demonstrates that
3 B.B. mentioned in passing later at the hospital that respondent had a gun. But as the
State recognizes, she “made no mention of a weapon when the officers were questioning her
while she was in the ambulance.” Pet. App. 69a; see Pet. 21. And Officer Soucek never sought
to ascertain whether respondent might pose a threat to public safety broadly. Pet. App. 20a.
20
she had testimonial intent when she made statements to the officer concerning the assault.”
Id. 22a.
Trying another tack, the State claims that B.B.’s responses were nontestimonial
because Officer Soucek was asking about “where the incident occurred.” Pet. 22. But the
overall “context” of the questioning here, Bryant, 562 U.S. at 363, renders that fact
immaterial. The scenario here was not like Davis, where the 911 operator had to discern the
location of the crime to help first responders find and address an ongoing emergency. See
547 U.S. at 827-28. Rather, when Officer Soucek asked his questions, both he and B.B. were
safely away from the location of the crime. The officer simply asked B.B. “[w]here did this
happen” to establish one of the facts of the case—the “where”—for subsequent prosecutorial
purposes.
The State also argues that B.B.’s statements were nontestimonial because she gave
what the State calls “fragmented and conversational answers” to the officer’s questions. Pet.
22-23. Even if the State is right in that characterization, it is wrong about what it means. No
one would say that a witness on the stand at trial is not giving testimony simply because her
speech is “conversational in tone with filler phrases (‘you know’)” or answers questions in
“fragmented” sentences. Id. 22. A person’s way of talking does not generally affect whether
her statements are testimonial. At any rate, other evidence here makes clear that B.B.’s
statements were testimonial. The officer asked B.B. a regimented set of questions—much
like a mini-deposition—and the interview took place “away from any witnesses to the
assault and safely away from her attacker.” Pet. App. 23a; see also id. 6a-7a (reproducing
deposition-like quotations and transcript). The officer even asked B.B. for her Social Security
number—hardly an “informal” (Pet. 22) piece of information.
21
2. The State also argues that the Ohio Supreme Court gave short shrift to whether
B.B.’s statements were excited utterances under Ohio law. Pet. 24. But as explained above,
this Court has squarely held that statements much like the ones here are testimonial even if
they qualify as excited utterances. See Davis, 547 U.S. at 821; supra at 17. So holding that
B.B.’s statements so qualified would not have mattered here. The State responds by quoting
Bryant and Clark for the proposition that “standard rules of hearsay, designed to identify
some statements as reliable, will be relevant” to the testimonial inquiry. Pet. 30. But as also
explained above, that passage from those opinions means merely that certain earmarks
relevant to hearsay analyses will often be relevant to confrontation analyses as well. See
supra at 12. And the Ohio Supreme Court considered the relevant earmarks here and
correctly determined that B.B.’s statements to Officer Soucek were testimonial.
IV.
This case provides no opportunity to revisit the Crawford framework more
generally.
After the State filed its Petition here, two Members of this Court expressed interest in
reconsidering the Court’s approach to the Confrontation Clause. See Franklin v. New York,
145 S. Ct. 831 (2025) (statements of Alito and Gorsuch, JJ., respecting the denial of certiorari).
But this case presents no occasion to revisit the primary purpose test or Crawford’s
testimonial approach more generally. The State has not asked this Court to revisit any
element of Confrontation Clause doctrine. In any event, this case would be a poor vehicle for
reconsidering governing precedent.
1. Justice Alito’s opinion in Franklin questions whether Crawford’s exclusionary rule
comports with the “relevant common law rules at the time of the adoption of the Sixth
Amendment.” 145 S. Ct. at 831. But any deeper inquiry into such history in this case would
not yield a different outcome.
22
As the State suggests, the “longstanding res gestae doctrine” is the most useful
historical touchpoint for evaluating the sort of statements at issue in this case. Pet. 26. Under
that doctrine, statements that were themselves part of the act in question were admissible
at common law. In contrast, “‘narrative[s] of past events, made after the events are closed’
fall outside the res gestae.” Jeffrey L. Fisher, What Happened—and What is Happening—to the
Confrontation Clause?, 15 Brook. L. Sch. J. L. & Pol’y 587, 597 (2007) (quoting People v. Wong
Ark, 30 P. 1115 (Cal. 1892)). For example, the statement “stop hitting me” would have been
admissible under the res gestae doctrine, whereas the statement “he hit me,” made after the
fact, would not. See id. at 598-599 (citing examples).
The statements here fall unquestionably into the latter camp. B.B.’s answers to Officer
Soucek’s questions were a retrospective account of an incident that had ended. Indeed, she
gave her statements in response to the initial question: “So what happened?” Pet. App. 6a.
There is consequently no schism between the Ohio Supreme Court’s confrontation analysis
and common-law evidentiary principles. B.B.’s would not have been admissible under
common law rules in effect when the Sixth Amendment was enacted.
2. Justice Alito also suggested in Franklin that the Court might benefit from revisiting
Crawford entirely. 145 S. Ct. at 831-833. According to Justice Alito, the confrontation right
might give defendants nothing more than a right to cross-examine witnesses who “appear in
court and testify.” Id. at 832. This Court, however, has always held to the contrary, making
clear that the right sometimes excludes out-of-court statements from non-testifying
witnesses. See, e.g., Motes v. United States, 178 U.S. 458 (1900); Douglas v. Alabama, 380 U.S.
415 (1965); Lee v. Illinois, 476 U.S. 530 (1986); Lilly v. Virginia, 527 U.S. 116 (1999). After
canvassing the history of the confrontation right, Crawford simply held yet “again” that the
23
Clause applies beyond testifying witnesses to exclude some out-of-court statements. 541 U.S.
at 50-51. The alternative approach Justice Alito has floated, in short, would require this Court
to overrule not just Crawford, but over one hundred years of settled doctrine.
There is no good reason to do that. “Leaving the regulation of out-of-court statements
to the law of evidence would render the Confrontation Clause powerless to prevent even the
most flagrant inquisitorial practices.” Crawford, 541 U.S. at 51. Indeed, limiting the
confrontation right to witnesses who testify in court would seemingly have condoned the
introduction of Lord Cobham’s out-of-court statement implicating Sir Walter Raleigh—
perhaps the foundational event in the development of the common law confrontation right.
See id. at 44-45, 51. That simply cannot be right. If the Court ever wishes to reconsider the
confrontation right in general, it should wait for the development of a less radical proposal—
or at least for the “insights and further experience of [the] lower court[s].” Franklin, 145 S.
Ct. at 837 (Gorsuch, J., statement respecting the denial of certiorari).
24
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be denied.
Respectfully submitted,
Erika Cunliffe
Counsel of Record
CUYAHOGA COUNTY PUBLIC
DEFENDER’S OFFICE
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
(216) 443-8353
ecunliffe@cuyahogacounty.gov
July 11, 2025
25
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.