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If 911 call was “testimonial” for Confrontation Clause purposes, error in admitting it was harmless

State v. Albert Lorenzo Finch, Sr., 2014AP744-CR, District 1, 10/7/14 (1-judge; ineligible for publication); case activity

Dodging an issue that has not been addressed in Wisconsin, the court of appeals assumes that even if the admission of the recording of a 911 call violated Finch’s right to confrontation the error was harmless because there was ample other evidence supporting the verdict.

When R.I. didn’t appear for trial on the charges Finch violated a domestic abuse injunction R.I. had obtained against him, the trial court allowed the state to play a recording of a 911 call R.I. made after she had already chased Finch away from her home. (¶¶2-3, 8). Even if the admission of the recording was error, it was harmless because it was “totally immaterial and irrelevant” to the charge and there was ample other evidence that Finch knowingly violated the injunction, given his testimony admitting he was at R.I.’s apartment, the process server’s testimony that Finch “got upset” when the papers were served on him, and testimony that Finch told a police officer that he had moved out of R.I.’s apartment because of the injunction. (¶¶4-5, 10-11).

Under the reigning Confrontation Clause cases, a”testimonial” statement is inadmissible unless the declarant is unavailable and the defendant has had an opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). As noted in our post on a recent cert grant, the Supreme Court has not definitively said what makes a statement “testimonial,” but the basic approach involves a “primary purpose” test keyed to whether the statement described “what happened” versus “what is happening”: If the primary purpose of the police questioning used to obtain the statement is to establish or prove past events potentially relevant to later criminal prosecution, the statement is testimonial. On the other hand, in a case involving a 911 call, the Court held that the statement was non-testimonial because it was made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Davis v. Washington, 547 U.S. 813, 822-27 (2006).

Courts have gone both ways on this question, depending, of course on the particular facts of the case. Compare State v. Powers, 99 P.3d 1262 (Wash. Ct. App. 2004) (911 was testimonial because the call’s purpose was “for assistance in his apprehension and prosecution, rather than to protect herself or her child from [the defendant’s] return”) with Commonwealth v. Beatrice, 951 N.E.2d 26 (Mass. 2011) (911 call from a woman using a neighbor’s phone saying she’d “just” been severely beaten by her boyfriend and wanted an ambulance and that her boyfriend was “packing his stuff” was not testimonial, as it was reasonable to conclude emergency continued until police arrived or boyfriend left). By resolving Finch’s claim on harmless error grounds, the court “leave[s] for another day whether 911 calls like the one here are testimonial.” (¶12).

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