Monday, August 3, 2009
Rescue 911: Oklahoma Appellate Court Reverses Murder Conviction Based Upon Confrontation Clause Violation
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that 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." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana. I think that these latter two opinions explain the recent opinion of the Court of Criminal Appeals of Oklahoma in Hunt v. State, 2009 WL 2195422 (Okla.Crim.App. 2009), but that court only cited Crawford and did not cite either of these opinions, making its conclusion confusing.
In Hunt, Randal Hunt was convicted of the first degree murder of Wynona Reames, with whom he shared an apartment and a turbulent relationship. Hunt was convicted in large part based upon the prosecution's introduction into evidence of an audio recording of a 911 call made a couple of months before Reames' death. That 911 call was made during the following sequence of events:
The police initially went to the decedent's apartment after receiving a hang-up 911 call on the evening of the 18th. After making contact with the decedent, the police left at her urging, despite observing evidence that she had been beaten. Approximately two and half hours later she called the police back and described the beating she received from Appellant and her resulting injuries. Yet, she told the dispatcher she was ambivalent towards having Appellant arrested. At the time of the call, Appellant was asleep on the decedent's couch.
The trial court overruled Hunt's objection that this recording was inadmissible under the Confrontation Clause, prompting his appeal to the Court of Criminal Appeals of Oklahoma. That court agreed with Hunt, concluding that
Certain statements on the tape clearly illustrate the decedent's fear of Appellant and therefore her state of mind. However, there are also statements on the tape accusing Appellant of causing her injuries due to a beating she received from him two and half hours earlier because she asked him to drive her to a nearby fast food restaurant.These accusatory statements, relating past events, would be the same as live testimony if Appellant had gone to trial for the assault on the decedent. Therefore, those portions of the 911 tape were inherently testimonial and subject to the confrontation requirement.
I think that this is the right conclusion, but I don't see how it follows from Crawford. Reames 911 call was either made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against Hunt at a later trial, or it was not. I don't see how it makes any difference under Crawford whether she was discussing her current fear or what happened two and a half hours ago.
Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] 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.
Under this test, the court's opinion makes sense because statements concerning current fear would be directed toward police meeting an ongoing emergency while statements relating to what happened two and a half hours ago (likely) would be made in the absence of an ongoing emergency.