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Defense win: Deceased witness’s out-of-court statements are “testimonial” and inadmissible

State v. Kevin J. McDowell, 2022AP164-CR, District 4, 9/22/22 (not recommended for publication); case activity (including briefs)

The decision in this interlocutory appeal addresses the procedure for assessing whether out-of-court statements the state proposes to admit at a criminal trial are “testimonial” and therefore inadmissible under the Confrontation Clause. It also rejects the state’s claim that a deceased witness’s statements to police are nontestimonial because they were made to address an ongoing emergency.

McDowell was charged with kidnapping and sexual assault. The state sought to admit other-acts evidence alleging he sexually assault five women. One of the women, “D,” has passed away, so the state proposed to admit the statements she gave to a police officer and a forensic nurse examiner. The forensic nurse examiner testified at an evidentiary hearing concerning the state’s motion, while the parties agreed that the circuit court would consider the police officer’s report in lieu of the officer’s testimony in ruling on the admissibility of the statements D made to the officer. (¶¶2-4). The circuit court ruled that all of D’s statements to both the forensic nurse examiner and the officer were testimonial and thus inadmissible and the state appealed. (¶¶1, 5).

In the circuit court, the parties took an all-or-nothing approach to the nurse examiner’s statements: They were either all testimonial and thus inadmissible, or they were all nontestimonial and thus admissible. (¶8). In the court of appeals, however, they changed their positions, with the state conceding that some statements D made to the forensic nurse examiner are testimonial and McDowell conceding that some statements D made to the nurse are nontestimonial. Thus, they agree the proper procedure for determining whether a statement is testimonial wasn’t followed in the circuit court, and the case has to go back:

¶9     The parties now agree that the U.S. Supreme Court requires courts to determine, as part of a Confrontation Clause discussion, whether individual statements of a declarant are testimonial rather than determining whether the entirety of a series of statements are testimonial: “Through in limine procedure, [courts] should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.” Davis v. Washington, 547 U.S. 813, 829 (2006); see also United States v. Norwood, 982 F.3d 1032, 1049 (7th Cir. 2020); State v. Burke, 478 P.3d 1096, ¶42 (Wash. 2021). In light of Davis, we agree with the parties’ request for a remand to the circuit court for the circuit court to review each statement made by D to the forensic nurse examiner to determine whether each statement is testimonial and, therefore, inadmissible.

¶10     On remand, the circuit court may proceed in its discretion with the procedure it thinks best. We suggest that the circuit court consider an approach that: (1) requires the State to specify each statement from D to the forensic nurse examiner that it contends is nontestimonial; and (2) allows McDowell to respond to the State’s filing by specifying his objections, if any, to the introduction in evidence of such statements the State has previously denominated.

The statements D made to the police officer were also treated as all admissible or inadmissible, and not considered separately in the circuit court; however, because the parties don’t argue the failure to consider the statements separately makes any difference to the analysis, the court addresses the merits of the state’s claim that the statements are admissible. (¶21 n.8).

The statements were made after police responded to a call of a fight involving two men attacking McDowell. When police arrived there was no fight, as the two men who attacked McDowell had left. An officer spoke to D, who was also there and was crying and breathing heavily. The officer asked her what happened, and she told police McDowell had sexually assaulted her. (¶¶12-13).

Whether a statement is testimonial is determined using the “primary purpose” test, which asks whether the primary purpose of the statements was to create an out of court substitute for trial testimony. The relevant factors in applying the test are: 1) the formality of the situation producing the statement; 2) whether the declarant makes the statement to law enforcement; 3) the declarant’s age; and 4) the context in which the declarant makes the statement. State v. Mattox, 2017 WI 9, ¶¶32-33, 373 Wis. 2d 122, 890 N.W.2d 256.

The fourth factor is the pertinent one here because the state claims the statements weren’t made to gather evidence to prosecute McDowell for a crime, but were instead made for purpose of resolving or addressing an ongoing emergency rather than responses to police questioning aimed at learning about potential past criminal events. Davis, 547 U.S. at 827, 830; Michigan v. Bryant, 562 U.S. 344, 361 (2011). (¶¶15, 18, 19-20). The court of appeals isn’t persuaded:

¶22     From an objective standpoint, at the time each statement was made by D to the officer, McDowell was not an immediate threat to D. McDowell was outside the building where D was standing with a police officer. McDowell was not near D. Two officers were standing with McDowell in the parking lot. There was no evidence that McDowell had a weapon with which to harm D. In other words, there was no emergency from D’s perspective because McDowell was controlled by the police. Rather, from an objective assessment, the statements made by D were descriptions, at the request of the officer, about what happened previously between D and McDowell. Those interactions gave the officer information about the alleged incidents that could be used to prosecute McDowell.

¶23     An objective assessment of the officer’s actions must also be considered. The officer was called to the scene initially because there was a report of a fight involving three men. The officer saw no evidence of anyone fighting or threatening to fight when he arrived at the scene or while talking to persons at the scene. The officer did not ask D about a fight involving the men or danger to anyone at the scene. Rather, he asked in a general manner what had happened to D. Nothing objectively establishes that there was an ongoing emergency occurring from the perspective of Officer Lewis or that D had information about an ongoing emergency.

Thus, D’s statements to the officer are inadmissible under the Confrontation Clause.

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