New NC Case on Testimonial Nature of Victim’s Statements to Officers

Under the Crawford Confrontation Clause rule, testimonial statements by witnesses who aren’t subject to cross-examination at trial can’t be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. Smith, A Guide to Crawford and the Confrontation Clause, in NC Superior Court Judges Benchbook (UNC School of Government Aug. 2015). In the Davis case, the US Supreme Court set out a two-part rule for determining whether or not statements are testimonial for purposes of the Confrontation Clause:

  • 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.
  • 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 facts potentially relevant to later criminal prosecution.

Id. Davis actually involved two consolidated cases. In the first, Davis v. Washington, 547 U.S. 813 (2006), the Court held that statements by a domestic violence victim during a 911 call were nontestimonial. The victim told the 911 Operator that her ex-boyfriend was “jumpin’ on me again” using his fists. 547 U.S. at 817. The victim reported the perpetrator’s name as Adrian Davis and added, “He’s runnin’ now.” Id. at 818. Davis was charged and although the victim didn’t testify, her 911 call statements were admitted at trial. Applying the two-part rule noted above, the Court held that the victim’s 911 call statements were nontestimonial. It noted that the victim was speaking about events as they were happening, not describing past events; that any reasonable listener would recognize that there was an ongoing emergency; that the elicited statements were necessary to resolve the present emergency, rather than learn what happened in the past; and that the interview was informal, specifically, that the victim’s frantic answers were provided over the phone, in an environment that was not tranquil or safe. Id. at 827-28.

In the companion case of Hammon v. Indiana, the Court came out the other way. In Hammon, officers responded to a reported domestic disturbance at the home of Herschel and Amy Hammon. Amy was on the porch and initially indicated that “nothing was the matter.” Id. at 819. Inside the house, officers saw flames coming out of a gas heating unit and glass on the floor. Upon further questioning, Amy indicated that Herschel hit her and shoved her onto the floor, into the glass. Id. at 820. Herschel was charged and although Amy did not testify at trial, her statements were admitted. The Court held that Amy’s statements were testimonial, finding it “entirely clear” that the interrogation was part of an investigation into possible criminal past conduct. Id. at 829. It found no ongoing emergency, noting that the officer heard no arguments and saw no violence and that Amy initially said that everything was fine. Id. During the officer’s questioning, he wasn’t trying to determine “what is happening,” but rather “what happened.” Id. at 830. Finally, the Court found the lack of formality not dispositive; it was “formal enough” that the interrogation was done in a separate room, away from the alleged perpetrator, with the officer taking Amy’s replies for use in the investigation. Id.

Five years later, in Michigan v. Bryant, 562 U.S. 344 (2011), the Court applied the same test and held that a mortally wounded shooting victim’s statements to first-responding officers were nontestimonial. In that case, at around 3:25 am, officers responding to a dispatch about a shooting found Covington lying next to his car at a gas station, with a gunshot wound to his abdomen. He appeared to be in great pain, and spoke with difficulty. 562 U.S. at 349. The police asked what happened, who shot him, and where the shooting occurred. Covington said that “Rick” shot him at around 3 am. He explained that he spoke with Bryant at Bryant’s house and when he turned to leave, he was shot. He then drove to the gas station. Id. The conversation lasted 5-10 minutes, ending when emergency medical services arrived. Covington died within hours. After speaking with Covington, the police called for backup and went to Bryant’s house. Although Bryant wasn’t there, they found blood and a bullet on the back porch, an apparent bullet hole in the back door, and Covington’s wallet and identification outside the house. Id. at 349-50. Covington’s statements to the police were admitted in Bryant’s criminal trial. The Court found the statements to be nontestimonial, concluding: “At bottom, there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded Covington within a few blocks and a few minutes of the location where the police found Covington.” Id. at 374.

That brings us to the new NC case, State v. Miller, ___ N.C. ___ (June 8, 2018), in which the defendant was charged with murdering his estranged wife, Ms. Wells. Approximately nine months before the murder, Officer Kato responded to a domestic call at the victim’s apartment. Kato made contact with Wells outside of her apartment. Wells said that the defendant entered her apartment through an unlocked door and held her there against her will for two hours, that they argued and that a physical struggle occurred. Kato accompanied Wells to her apartment to make sure the defendant was not still there. Slip op. at 3-4. The defendant was later charged and convicted of domestic criminal trespass. At the defendant’s murder trial the trial court admitted, over the defendant’s confrontation clause objection, Kato’s testimony about Wells’s statements to him in the incident months before the murder. Slip op. at 4-5. The Court of Appeals held that Wells’s statements were testimonial. The NC Supreme Court disagreed, finding that the statements were nontestimonial. It reasoned:

Ms. Wells made the challenged statements during the course of an ongoing emergency caused by defendant’s entry into her apartment and defendant’s decision to both detain Ms. Wells at that location and to physically assault her. Although Ms. Wells did describe certain events that had occurred before Officer Kato’s arrival outside her apartment, the information that Ms. Wells provided to Officer Kato led to Officer Kato’s decision to enter the apartment to ensure that defendant, whose current location was unknown, had departed and no longer posed a threat to Ms. Wells’s safety. In light of that fact, the extrajudicial statements that Ms. Wells made to Officer Kato served more than an information-gathering purpose. In addition, the discussion between Officer Kato and Ms. Wells was clearly informal and took place in an environment that cannot be reasonably described as tranquil. (quotation omitted).

Slip op. at 17-18. Want to learn more about the Confrontation Clause? I’ve got you covered: Check out my Benchbook Chapter noted above; and for all recent cases, see my Criminal Case Compendium here.

2 thoughts on “New NC Case on Testimonial Nature of Victim’s Statements to Officers”

  1. The 6th Amendment says ”In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him…” The 6th Amendment does not have an exception for witnesses whose statements are “non-testimonial.” The Court should reject this bogus “non-testimonial” exception to the law.


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