Although the U.S. Supreme Court’s opinion in Michigan v. Bryant may have signaled a loosening of that Court’s interpretation of the key term “testimonial” as used in the Crawford confrontation clause analysis, a recent N.C. Court of Appeals decision suggests that our courts aren’t so inclined. Recall that under Crawford, testimonial statements by people who don’t testify at trial are inadmissible unless the State establishes unavailability and a prior opportunity to cross-examine. Bryant was the Court’s latest decision exploring the meaning of the key term “testimonial.” In a series of blog posts here, here, and here, I analyzed that important case. In a nutshell, Bryant held—over a bitter dissent by Justice Scalia—that a homicide victim’s statements to responding officers were nontestimonial.
The recent court of appeals decision was State v. Glenn, decided April 17, 2012. Here are the facts: Around 3 am, while the victim was looking for a cab, a vehicle pulled up and a male driver asked the victim if she needed a ride. Believing the vehicle to be a cab, the victim got in. She then discovered that the vehicle was not a cab and that the driver was naked from the waist down. When she tried to exit the vehicle, the driver called her a name and grabbed her shirt. Although the victim was able to escape by jumping out of the vehicle, she was dragged by it and sustained injuries. The defendant was charged with kidnapping, assault, and indecent exposure. At trial, the State offered statements by another woman (“the declarant”) who had previously accused the defendant of raping her at knifepoint. In that out-of-state case, the defendant was convicted only of menacing. Because that declarant was deceased at the time of the defendant’s trial in the Glenn case, an officer was allowed to testify, over the defendant’s objection, to the declarant’s statements. The officer testified that when responding to a 911 call at a Waffle House restaurant, he encountered the declarant crying and visibly upset. She told the officer that while she was waiting at a bus stop a driver asked her for directions. When she leaned in to give directions, the driver grabbed her shirt collar and told her to get in the vehicle. The victim complied because the driver had a knife. The driver then took her to a parking lot where he raped and then released her. The victim then walked to the Waffle House. This proved effective evidence and the defendant was convicted. He then appealed, arguing that the trial court erred by admitting the declarant’s testimonial statement. The court of appeals agreed. The court began by distinguishing the case before it from Bryant in three respects:
- Circumstances surrounding the questioning. The court noted that when the officer approached the declarant, there was no ongoing assault, the declarant had no signs of trauma, and no suspect was present. The court noted that although the officer did not initially know what continuing danger the perpetrator might pose, there was no evidence that he searched the area for the perpetrator or secured the scene. Based on the officer’s questions and the declarant’s refusal of medical care, the court concluded that the officer “assessed the situation, determined there was no immediate threat and then gathered the information.” It concluded: “even if [the officer] believed there was an ongoing emergency when he arrived . . . , [the declarant’s] statement transitioned from a nontestimonial statement into a testimonial statement after [the officer] determined that no ongoing emergency existed.”
- Ongoing danger. The court found no indication that the defendant would return to the area to harm the declarant. Additionally, it noted, unlike the Bryant defendant who had a gun, here the perpetrator possessed only a knife. On this basis, the court found that there was no threat to the officer. As to a threat to the public, it concluded that the defendant’s motive was sexual and “[t]his sexual motive, unlike the unknown motive of the shooter in Bryant, did not suggest an immediate threat to the public at large.”
- Circumstances of the encounter. Next, the court turned to the circumstances of the encounter, noting that because only one officer was involved in the questioning the circumstances “were more like an interview, and unlike the circumstances in Bryant where several officers asked questions.” The officer asked what happened and the declarant narrated the relevant information. The court concluded that because the declarant declined medical attention, the primary purpose of her statement could not have been to obtain such help. It stated: “[the declarant] seemed to have no difficulty in recalling the events, and gave [the officer] a detailed description of the events, implying that her primary purpose was to provide information necessary for defendant’s prosecution.” In this regard the court noted that the declarant said that she wanted to prosecute the suspect. Turing to the declarant’s responses, the court quickly concluded that “[t]here was no evidence presented that the primary purpose of her statement was for any other reason than to apprehend defendant.”
Having distinguished Bryant, the court found the case before it more like the N.C. Supreme Court’s pre-Bryant decision in State v. Lewis (holding that a victim’s statements to a first-responding officer were testimonial). Finally, the court held that the trial court’s error in admitting the testimonial statement was not harmless beyond a reasonable doubt and it ordered a new trial.
What’s most interesting to me about Glenn is that I view Bryant as a slight “loosening” of the standard for testimonial evidence. Recall that in Bryant, Justice Scalia—the godfather of Crawford—ended up in the dissent, bitterly arguing that the victim’s statements at issue were testimonial. But the majority disagreed, holding that they were nontestimonial and not covered by Crawford. And in fact some of the very same conduct that the Glenn court pointed to as evidence of a testimonial statement did not so persuade the Bryant Court. For example, in Bryant, the fact that the officers failed to search the scene for the perpetrator did not prevent the Court from concluding that the victim’s statements were nontestimonial. However, by relying on Lewis–a pre-Bryant decision—without qualification the Glenn court implicitly rejected the notion that Bryant represents an easing of the testimonial analysis.
What’s that I hear? It might be a collective prosecutorial groan.