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Confrontation – Hearsay – Statement of Recent Perception, § 908.045(2)

State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding1 [general principles]: Assuming that an out of court statement first satisfies a hearsay rule (¶23), it does not implicate the “core” concern of the confrontation clause unless the statement is considered “testimonial” under Crawford v. Washington, 541 U.S. 36, 50-51 (2004), which although declining comprehensive definition, provides three formulations: ex parte in-court testimony; formalized extrajudicial statements; and statements reasonably thought to be available for use later, at a trial. ¶¶37-39.

Issue/Holding2 [application to facts]:

¶53      We find these cases persuasive. Applying them, we conclude that Stamps’ statements to were not testimonial. Stamps made the statements to Rhodes, his girlfriend, during what appears to be a spontaneous, private conversation that occurred shortly after the shooting.  See United States v. Manfre, 368 F.3d 832, 838 n.1 (8th Cir. 2004) (statements “made to loved ones or acquaintances . . . are not the kind of memorialized, judicial-process-created evidence of which Crawford speaks.”); Horton, 370 F.3d at 84; Rivera, 844 A.2d at 202; Shepherd, 689 N.W.2d at 729; Woods, 152 S.W.3d at 114. There is no dispute that Rhodes is not a government agent, nor is there any contention that Stamps somehow expected Rhodes to report to the police what he told her. See Cervantes, 12 Cal. Rptr. 3d 774, 783. By all indications, the conversation was confidential and not made with an eye towards litigation. See also State v. Vaught, 682 N.W.2d 284, 291 (Neb. 2004) (concluding that four-year-old victim’s statement to an emergency room physician that her uncle sexually assaulted her was not testimonial as there was no indication of a purpose to develop testimony for trial, nor any indication of government involvement in the initiation or course of the examination). Absent any evidence that Stamps was attempting to use Rhodes to mislead the police on his own behalf, we conclude that Stamps’ statements cannot be considered testimonial under Crawford‘s third formulation.

This result will have to be read keeping in mind since-decided cases such as Davis v. Washington, 547 U.S. 813 and Hammon v. Indiana, 547 U.S. 813, neither of which dealt with similar facts, but which laid down broad principles.

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