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Univ. of South Carolina School of Law

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Monday, August 4, 2008

Rescue 911: Court Of Appeals Of Virginia Finds 911 Call Satisfies Excited Utterance Exception And Confrontation Clause

The Court of Appeals of Virginia's recent opinion in Caison v. Commonwealth, 2008 WL 2884089 (Va.App. 2008), seems to be directly in line with the opinion of the United State's Supreme Court in Davis v. Washington, 547 U.S. 813 (2006).  In Caison, Donald Lee Caison, Jr. was convicted of manslaughter after evidence introduced at trial indicated that Caison stabbed William Green to death with a knife during an altercation.  Some of this evidence consisted of evidence indicating that after the stabbing, Green's friend called 911 resulting in, inter alia, the following exchange:

     -911 OPERATOR: Okay. Where is the guy that cut him?

     -CALLER: He ran.

     -911 OPERATOR: Okay. What does he look like?

     -CALLER: A tall black male, about 6 foot, 6 foot 1.

     -911 OPERATOR: Does anybody know who he is?

     -CALLER: Yes. He's Donald Lee Caison.

After he was convicted, Caison appealed, claiming that the friend's statements were inadmissible hearsay and that their introduction violated his rights under the Confrontation Clause.  In finding that the friend's statements were admissible as excited utterances, the court relied upon its previous opinion in Esser v. Commonwealth, 566 S.E.2d 876 (Va.App. 2002), which stated that:

     "A statement comes within the excited utterance exception to the hearsay rule and is admissible to prove the truth of the matter stated, when the statement is spontaneous and impulsive, thus guaranteeing its reliability....The statement must be prompted by a startling event and be made at such time and under such circumstances as to preclude the presumption that it was made as the result of deliberation. In addition, the declarant must have firsthand knowledge of the startling event. The decision whether the statement qualifies as an excited utterance lies within the discretion of the trial court."

The court then found that the friend's statements were indeed prompted by a startling event -- the stabbing -- and made soon after the event, precluding any presumption of deliberation.  It then acknowledged but rejected Caison's argument that the friend's statements could not constitute excited utterances because they were prompted by questions from the 911 operator.  Instead, it cited to another previous opinion in which it had found that:

     "To pivot the admissibility of a subsequent statement, however spontaneous, on the question[ ] of whether it was prompted by an equally spontaneous inquiry would serve no useful purpose. If the question or questioner suggested or influenced the response, then the declaration may lack the necessary reliability to be admitted."

I actually wrote the memorandum to the justices of the Supreme Court of Virginia in the Esser case on the issue of whether they should grant cert, and I can confirm that the court's ruling in Caison is consistent with Virginia law.  But what about the Confrontation Clause issue?

Well, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that hearsay is inadmissible when it is "testimonial" unless certain conditions are met.  And while the Court was far from clear in defining the term, it essentially said that a statement is "testimonial" when it was made with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.  So, if Crawford was the last word on the matter, the friend's statements in Caison would likely have been found inadmissible because the friend probably knew or should have known that her statements to the 911 operator would or could eventually be used in a criminal prosecution.

Crawford, however, was succeeded by Davis v. Washington, in which the Supreme Court found that admission of a 911 call did not violate the Confrontation Clause because it found that:

     "[s]tatements 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."

The Court in Davis then found that the 911 call was nontestimonial because:

     "(1) the caller was describing the events as they were happening; (2) the caller was facing an ongoing emergency; (3) the nature of what was asked and answered was necessary to resolve the present emergency rather than learn what happened in the past; and (4) the caller's answers were frantic[, provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe]."

In Caison, the Court of Appeals of Virginia applied this same logic to the friend's 911 call, finding that it was admissible because the friend:

     "described the events as they were happening. She spoke of whether Green was conscious, bleeding, and breathing as the deteriorating condition was actually occurring. The operator responded to the trauma by directing [the friend] to apply pressure to the wounds with a clean towel to slow the bleeding and kept her on the phone 'to make sure [Green's] condition [did not] get worse.' Asked by the operator how Green was injured, who committed the stabbing, whether the perpetrator was armed, and where the perpetrator fled, [the friend] replied that appellant hit Green in the stomach with a beer bottle, she did not know if he was armed, and he fled 'towards Herndon Parkway.' In addition, the emergency was ongoing throughout the interrogation. The nature of what was asked and answered was necessary to enable the police to arrange for the arrival of the appropriate medical services to treat Green's injuries and to warn police that appellant, a dangerous and potentially armed man, ran at-large in the neighborhood. Because [the friend] rendered aid to a dying man while facing the threat of appellant's return to the scene, she was 'in an environment that was neither tranquil nor safe.'" 

-CM

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