State v. Nelson Holmes, 2024AP1121, District I, 6/17/25 (one-judge decision; ineligible for publication); case activity
The COA affirmed Nelson Holmes’ conviction at trial of operating a vehicle under the influence and with a prohibited alcohol concentration, finding that a witness’s statements to a 911 operator were not testimonial and were admissible as present sense impressions, and that Holmes was not subjected to custodial interrogation when he made incriminating statements to police.
The criminal complaint alleged that Holmes’ vehicle hit another vehicle on North 35th Street in Milwaukee, in which A.L. and G.J. were riding. A.L. and G.J. told police dispatched to the scene that they thought Holmes was intoxicated and took his keys so he would not flee. An officer encountered Holmes and saw that his eyes were glassy, his speech was slurred, he had difficulty standing, and he smelled of alcohol. Holmes agreed to perform field sobriety tests but could not complete them. Holmes was then arrested and transported to a hospital for treatment; a blood test showed his blood alcohol level was .312. (¶¶ 3-4).
Before trial, the State sought to admit two recordings of phone calls G.J. made to 911; the circuit court found the calls were admissible as present sense impressions and excited utterances but withheld from deciding whether to admit the calls until trial. At trial, Holmes argued admitting the calls violated his right to confrontation because G.J. did not testify; the circuit court admitted only the first 40 seconds of the 911 call when G.J. first reported the accident and the last 20 seconds when G.J. identified her location, name, and phone number. (¶ 4).
Holmes also objected to admitting portions of the officers’ body and squad camera footage from the scene of the accident, the squad car, and the hospital because they depicted statements he made while subjected to custodial interrogation, but he was not advised of his Miranda rights. The circuit court admitted the footage from the scene of the accident because Holmes was not in custody at the point, and it admitted his statements in the squad car and at the hospital because the statements were voluntary and not prompted by police questioning. The jury found Holmes guilty of both counts. (¶¶ 5-9).
On appeal, Holmes argued that G.J.’s 911 calls violated his right to confrontation and were inadmissible hearsay, and that he was subjected to custodial interrogation but not advised of his Miranda rights.
The Court found that G.J.’s statements on the 911 call were not testimonial, and therefore did not violate Holmes’ right to confrontation: “It is clear from the content and context of the 911 calls that the primary purpose of G.J.’s statements were not to create an out-of-court substitute for trial testimony relevant to later prosecution but instead to seek police assistance in response to the car accident.” (¶ 15). The Court rejected Holmes’ argument that the calls were testimonial because there was no ongoing emergency when G.J. called 911 given that no one was injured and both cars were on the side of the road: “G.J. had just been in a car accident, believed that Holmes was trying to flee the scene, and called 911 for assistance with that situation. G.J. was not acting as a witness and testifying in that moment.” (¶ 16).
The Court found that the calls were admissible under the present sense impression exception to the hearsay rule, which allows a court to admit statements “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Wis. Stat. § 908.03(1). Holmes argued that G.J.’s statements to the 911 operator did not qualify because they were not made while she witnessed an ongoing emergency, but the Court observed “there is no requirement for present sense impressions to be made simultaneously with an active emergency” given that the exception applies to statements made “immediately thereafter” an event. (¶ 20). The Court did not address whether the statements were admissible as excited utterances.
Regarding Holmes’ statements to police, the Court found that his statements at the scene were not custodial because they occurred before he was arrested. (¶ 23). The State did not dispute that Holmes was in custody when he made statements in the squad car and at the hospital; but it argued that the circuit court properly admitted those statements because they were made voluntarily without prompting by police. (¶ 24). Because Holmes’ brief-in-chief did not address the issue and he did not file a reply brief, the Court considered that Holmes conceded he was not “interrogated” when he made statements to the officers in the squad car and at the hospital. (¶ 24).
