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Editor: Colin Miller
Univ. of South Carolina School of Law

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Thursday, June 26, 2008

No Emergency Exit: Florida Prosecutors Dismiss Animal Cruelty Case Based Upon Confrontation Clause

On Tuesday, Florida prosecutors dismissed the animal cruelty case against Josper Sanon, a decision that came two months after the 4th District Court of Appeal reversed his animal cruelty conviction and remanded for a new trial.  In October 2006, Sanon was convicted of animal cruelty after allegedly hurling his son's black Labrador puppy, Nikita, off of a fifth-floor balcony, killing the 8-week old puppy upon impact.  The problem with the conviction was that it was largely based upon the son's claim that Sanon killed the pooch, and the son did not testify at trial.  Instead, a police officer testified that he was driving on the day in question when he saw a boy talking on his cell phone, crying and flailing his arms.  According to the officer, when he asked the boy what had happened, the boy responded that his father had thrown his dog off of the balcony.  Despite receiving a subpoena, the son did not attend his father's trial.

Santon was halfway through serving his three-year prison sentence before the 4th District concluded that the son's failure to testify was fatal to the prosecution's case.    And it was fatal because it violated the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 547 U.S. 813 (2006).  In Crawford, the Court essentially found that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."

In Davis, the Court tweaked that analysis, noted that context matters, and seemed to conclude that even statements meeting the above formulation of "testimonial" could be admissible if they were made during an "ongoing emergency."  According to the 4th District, however, the son's statements were not made as part of an "ongoing emergency."  Instead, the son's statements occurred 20 minutes after the incident, with the officer approaching the son rather than vice versa.  And while the state claimed that the son's statements were also admissible as excited utterances, the 4th District noted that excited utterances still must satisfy the Confrontation Clause.

The 4th District thus reversed for a new trial, and, realizing that it no longer had a case, the state finally threw in the towel on Tuesday and dismissed the charges against Sanon.  In my estimation, this is a very upsetting case, but a correctly decided one under the law.

-CM      

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