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Confrontation – Hearsay: “Testimonial” Statement – Excited Utterances – Ongoing Emergency

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06; subsequent history: affirmed, 2007 WI App 252 (court assumes without deciding that statements were testimonial but holds that Rodriguez forfeited right to confrontation by intimidating witness from testifying), PFR denied 2/21/08
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue: Whether statements to the police, indisputably excited utterances, by both the alleged victim of an act of domestic violence and her daughter shortly after a 911 call; and by the same two the following day also to the police were “testimonial” and thereby violative of confrontation given that neither testified at trial nor had previously been cross-examined.


¶16      Davis was a consolidated decision in two cases, Davis v. Washington and Hammon v. Indiana Davis, 126 S. Ct. at 2270, 2272. ……

¶18      … Resolving much of the ambiguity left by Crawford, Davis set out the following bright-line, but, perhaps, not conclusive rule:

Without attempting to produce an exhaustive classification of all conceivable statements-or even all conceivable statements in response to police interrogation-as either testimonial or nontestimonial, it suffices to decide the present case to hold as follows: 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. They 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 events potentially relevant to later criminal prosecution.

Davis, 126 S. Ct. at 2273–2274. …¶19      … We now turn to our case, and analyze it under both Wisconsin case law and the United States Supreme Court’s latest word in Davis.

¶20      … Manuel set out the formulations as follows: …

(3) “[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Id., 2005 WI 75, ¶37 ….…

¶23      … Victims’ excited utterances to law-enforcement officers responding to either an on-going or recently completed crime, serve, as with the 911-call, a dual role—the dichotomy between finding out what is happening as opposed to recording what had happened, which, as we have seen, was recognized in Davis.…

¶26      A similar analysis applies when police talk to an attack-victim when the stress and cognitive disruption caused by the attack is still dominant, because the key consideration in connection with both the third Crawford/ Manuel formulation and Davis’s rubric, focuses on an objective analysis of the out-of-court declarant’s expectation as to how what he or she tells law enforcement will be used. …

¶27      There is nothing in the Record here that indicates that what Rodriguez does not dispute were “excited utterances” by Ms. LaMoore and Casey when the officers first spoke with them were motivated by anything other than their desire to get help and secure safety. Moreover, given their contemporaneously endured trauma it cannot be said that objectively they said what they said to the officers with a conscious expectation that their words would somehow have the potential for use in court against Rodriguez. It also cannot be said that, objectively, the officers intended to record past activities rather than assess the then-current situation.

Viability of court’s analysis subject to doubt in light of subsequently decided State v. Jensen, see above.)Lengthy excerpt above necessitated by novelty of the issue—Wisconsin’s first precedential bout with Davis/Hammon—and also the implications—without saying so the court in effect carves out a domestic violence/excited utterance exception to confrontation. (On the bright side: if this case holds up there won’t be much need to grapple with the forfeiture doctrine, the next great uncharted confrontation territory.) Much can and will be said about this case, but not here except that it falls just between Hammon (accusation against husband made by wife in their home while officer was “securing and assessing the scene” testimonial; husband under control of one officer while officer took wife’s statement) and Davis (statement made during 911 call; accused still at large)—that’s because LaMoore made both her statements in or immediately outside her home, like Ms. Hammon; but, each time Rodriguez was not within police control, like Davis. Still, this case seems an awful lot closer to Hammon than Davis. For now, it’s enough to recite this reaction to Davis/Hammon by Richard Friedman:

There is more good news as well. The Court is explicit that it found Hammon a “much easier” case than Davis. It makes clear that if the statement concerns a closed event—“what happened” rather than “what is happening”—then it should usually be considered testimonial. The pattern of the Court’s decisions after Davis on pending certiorari petitions suggests that the Court indeed recognizes that most accusatory statements made to police officers in the field should be considered testimonial. And further confirmation is provided by the Court’s apparent endorsement of the pre-Framing English case R. v. Brasier, which characterized as testimonial an accusation of attempted rape made by a young child to her mother immediately after coming home; neither the immediacy of the statement, the youth of the declarant, nor the private status of the audience removes the statement from the protections of the confrontation right, and that is as it should be.

One other point, perhaps. The majority relies on the pre-Davis cases of State v. Jeffrey Lorenzo Searcy, 2006 WI App 8 and State v. Donavin Hemphill, 2005 WI App 248, both of which deemed volunteered statements by non-victims to the police to be nontestimonial. Indeed, without quite saying so, the majority all but adopts wholesale an excited-utterance exception to confrontation. The dissent would distinguish those cases on the basis that, in contrast to victims, “(c)itizens who volunteer information of this nature to the police usually do not have an expectation that their statements will require them to testify,” ¶46. A fair point, certainly; but if Friedman is right, the fault-line runs along what the declarant describes, not his or her state of excitation.See also State v. Mechling, 633 S.E.2d 311 (W.Va. 2006) (confrontation violated where statements of DV complainant to deputies, made after Mechling had left scene, allowed into evidence; court reserves judgment as to whether her statement to a private party related “what is happening” as opposed to “what happened):

… (A) witness’s statement taken by a law enforcement officer in the course of an interrogation is testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the witness’s statement is to establish or prove past events potentially relevant to later criminal prosecution. A witness’s statement taken by a law enforcement officer in the course of an interrogation is non-testimonial when made under circumstances objectively indicating that the primary purpose of the statement is to enable police assistance to meet an ongoing emergency…….

There was no emergency in progress when the deputies arrived, and the defendant had clearly departed the scene when the interrogation occurred. When the deputies questioned Ms. Thorn, they were seeking to determine “what happened” rather than “what is happening.”

See also State v. Alvarez, 143 P.3d 668 (Az App 2006), supp. op. (responses of semi-conscious, and soon-dead, victim not testimonial, court citing Rodriguez with approval; disputing idea that “what happened” questions necessarily testimonial — but in that instance victim found staggering on highway, and thus presented an “ongoing emergency”); State v. Graves, 157 P.3d 295O (Ore. App 2007) (similar facts to Rodriguez, police response to 911 call on DV emergency, but not entirely compatible result: first statement, made immediately on police arrival at home, nontestimonial because there was potential emergency; subsequent statements at scene testimonial because police had confirmed defendant no longer in house and thus was no imminent threat); State v. Ohlson, 168 P.3d 1273 (Wn. 2007) (“the critical consideration is not whether the perpetrator is or is not at the scene, but rather whether the perpetrator poses a threat of harm, thereby contributing to an on-going emergency”); State v. Camarena, 176 P.3d 380 (Ore. 2008) (911 call reporting that assailant had only left a minute ago non-testimonial, because “the scant 60 seconds … is insufficient to suggest that the danger of a renewed assault had fully abated”; however, certain “responses were unnecessary to resolve an ongoing emergency” and were therefore testimonial).

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