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Witness’s statement made during continuing emergency isn’t “testimonial” for Confrontation Clause purposes

Steven D. Lisle, Jr., v. Guy Pierce, 7th Circuit Court of Appeals No. 14-3047, 2016 WL 4245489, 8/11/16

Lisle sought federal habeas relief from his murder and aggravated battery convictions, arguing that his Sixth Amendment right to confrontation was violated by the admission of a hearsay statement identifying him as the man who shot two people, one fatally. But the state courts reasonably applied clearly established federal law on the question, so his quest for relief is denied.

Hearn, the man who was wounded in the shooting, walked to the house of Lee, his aunt, and Lee called 911. While they were waiting for paramedics to arrive, Lee asked Hearn who shot him; he identified Lisle and another man. For undisclosed reasons Hearn wasn’t called as a witness at Lisle’s trial, but Lee was. (Slip op. at 2-3).

The state courts rejected Lisle’s argument that allowing Lee to testify to Hearn’s identification violated the Confrontation Clause, holding that Hearn’s statement wasn’t “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004) (witness’s recorded statement to police officer was testimonial), and Davis v. Washington, 547 U.S. 813 (2006) (witness’s statement to 911 not testimonial because it was made as events were happening) and Hammon v. Indiana (decided with Davis, holding that witness’s answers to police questioning were testimonial). (Slip op. at  3-4, 9-10).

The 7th Circuit finds this conclusion to be reasonable:

Crawford, Davis, and Hammon all involved statements made to law enforcement. At the time of the last state court decision in this case in 2007, and even up until now, the Supreme Court has not yet applied Crawford to statements made to people who are not law enforcement officers. The Court also has declined to adopt a “categorical rule excluding … from the Sixth Amendment’s reach” statements made to individuals who are not law enforcement officers, see Ohio v. Clark, 576 U.S. ––––, 135 S.Ct. 2173, 2180—81 (2015), citing Davis, 547 U.S. at 823 n.2, so that question remains open in Supreme Court jurisprudence.

Our inquiry under 28 U.S.C. § 2254(d)(1) is whether the state court’s rejection of Lisle’s Confrontation Clause claim was an “unreasonable application” of controlling Supreme Court precedent in 2007, meaning that it was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” See Harrington v. Richter, 562 U.S. 86, 103 (2011). Lisle cannot satisfy this demanding standard.

Apart from the problem that the Supreme Court had not held in 2007 that a statement to someone other than a law enforcement officer can be testimonial under Crawford, the statement falls at best in between the two statements in Davis and Hammon. Under those circumstances, we cannot say that the state court’s decision was an unreasonable application of those precedents.

(Slip op. at 8-9). Indeed, the state courts “correctly anticipated” Michigan v. Bryant, 562 U.S. 344 (2011), which held that answers to questions asked so police can assist with an ongoing emergency are not testimonial. (Slip op. at 11-12).

Lisle loses despite making the good argument that Lee’s questions about the shooter’s identity wouldn’t do much, if anything, to help the paramedics in treating Hearn; instead, she was trying to get information to “bring justice” in case Hearn died from his wounds:

There is room for fair argument on these points, but Lisle has not shown that the state court decision was an unreasonable application of Supreme Court precedent, in 2007 or even today. In light of Davis and factual differences between this case and Hammon, it was not unreasonable for the state court to find that Hearn’s statement to Lee was part of an effort to deal with an ongoing emergency and thus was nontestimonial.

(Slip op. at 10-11).

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