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Admission of 911 call didn’t violate Confrontation Clause

State v. Eric L. Moore, 2016AP1292-CR, District 1, 10/31/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Moore’s right to confrontation wasn’t violated by the admission of the recording of a 911 call about an incident in which Moore was alleged to have committed battery against A.J. Nor was Moore’s lawyer ineffective for deciding not to elicit information that A.J. later recanted that allegation of battery.

A.J. didn’t testify at the trial. Instead, the state put on a 911 operator who received a call from A.J.’s child describing Moore as choking and fighting with her mother and saying she (the caller) was scared. The state also played a recording of the child’s call. (¶¶3, 8). Moore argues the admission of this evidence violated his right to confrontation because the child wasn’t made available for cross-examination.

“[C]onfrontation challenges begin with an analysis of whether the out-of-court statements used against a defendant are ‘testimonial.’ If the statements are not testimonial, the Confrontation Clause is not implicated.” State v. Mattox, 2017 WI 9, ¶24, 373 Wis. 2d 122, 890 N.W.2d 256. The child’s call wasn’t “testimonial” under Davis v. Washington, 547 U.S. 813, 822 (2006), because it was made to police with the “primary purpose” of “enabl[ing] police … to meet an ongoing emergency”:

¶16     The call in question was specifically made to summon police to help A.J., who was being beaten. The trial court found that the child making the call was “clearly upset,” was “seeking help,” and was “crying and very upset and under the influence of the emotion of the events.” The answer to the first question—whether the statement is non-testimonial—is clearly yes under Crawford [v. Washington, 541 U.S. 36 (2004)] and Davis because 1) it is not any of the types of testimonial statements Crawford listed, and 2) it is exactly the type of non-testimonial statement described in Davis, made in the course of “an ongoing emergency” with the “primary purpose” of obtaining help from the police in a violent situation.

Even if it’s not testimonial, the statement still has to clear the hearsay hurdle. The child’s 911 call does, as it’s admissible under § 908.03(2) as  “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” (¶17).

Moore also argues his trial lawyer was ineffective for not pursuing a plan to introduce evidence that A.J. had been cited for obstructing when she recanted her statement to police that Moore had battered her. But trial counsel dropped that plan—after consulting with Moore—when the trial court ruled that if the obstruction citation came in, so would both of A.J.’s statements, to provide the proper context. Trial counsel didn’t want the jury to hear statements from A.J. that would otherwise be inadmissible. (¶¶3-4, 7, 9). This was a reasonable strategic decision and therefore Moore hasn’t shown deficient performance. (¶¶19-20).

Finally, the court holds there was sufficient evidence to support conviction on a separate battery and DC charge several weeks later that was based solely on a snippet of A.J.’s 911 call about that incident. (¶¶5, 8, 21-23).

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