Tuesday, September 1, 2009
Under what circumstances can a 911 call made by a non-testifying declarant be admissible against a criminal defendant despite his Sixth Amendment rights under the Confrontation Clause? It is a question that has received inconsistent answers by courts since the Supreme Court's opinion in Davis v. Washington, 541 U.S. 36 (2004). But I think that the Appeals Court of Massachusetts did a good job of answering it in its recent opinion in Commonwealth v. Beatrice, 2009 WL 2634772 (Mass.App.Ct. 2009).
In Beatrice, the victim entered the bathroom of a place that she shared with her boyfriend, Joseph Beatrice, to get a cigarette. When he refused to give her one, the two got into a heated argument, with Beatrice punching the victim in the eye and the victim scratching his face. The victim then went to a bedroom, and Beatrice eventually followed her, with the argument continuing. The victim then wanted to leave the bedroom, but Beatrice would not let her; she was, however, able to escape and run to a neighbor's house.
There, she made a 911 call, and
[d]uring the call, she was out of breath and frantic. She immediately told the dispatcher, "I'm using my neighbor's phone. I live at [address]. My boyfriend just beat me up. He beat the shit out of me. I need a cruiser."The dispatcher then asked for her boyfriend's name, and the victim responded, "Joseph Beatrice." Next, the dispatcher asked if the defendant was still in her apartment, to which the victim responded, "He's still there," followed by something inaudible. Finally, the dispatcher asked if the victim needed an ambulance, and the victim responded "Umm. Please. And I, I need you to send the cops now before he leaves."
This 911 call was later instrumental at the trial leading to Beatrice's conviction for assault and battery, and its admission formed part of the basis for his subsequent appeal. Beatrice first argued that the the 911 call was inadmissible hearsay, but the Appeals Court of Massachusetts easily found that the call was an excited utterance because, "[d]uring the 911 call, the victim was frantic and out of breath, and said that the altercation had 'just' happened."
Beatrice next argued that the 911 call was inadmissible against him based upon the Confrontation Clause, because the call failed to qualify as nontestimonial under Davis v. Washington because its primary purpose was not "to enable police assistance to meet an ongoing emergency." The Appeals Court of Massachusetts again disagreed, noting that
To determine the primary purpose of the interrogation, we consider the factors set out in Davis v. Washington: "(1) whether the 911 caller was speaking about 'events as they were actually happening rather than describ[ing] past events'; (2) whether any reasonable listener would recognize that the caller was facing an 'ongoing emergency'; (3) whether what was asked and answered was, viewed objectively, 'necessary to be able to resolve the present emergency, rather than simply to learn ... what had happened in the past,' including whether it was necessary for the dispatcher to know the identity of the alleged perpetrator; and (4) the 'level of formality' of the interview (emphasis in original)."
Applying these factors, the court found that 911 call was nontestimonial
but rather were made during an emergency and were nontestimonial. The victim's demeanor on the tape recording-she was out of breath and frantic-and her statement that the defendant had "just" beaten her up indicated that the assault had taken place only moments earlier. The emergency was also ongoing. In the call, the victim told the dispatcher that the defendant was still in the apartment. In addition, she responded affirmatively when the dispatcher asked if she needed an ambulance.
In so doing, the court rejected Beatrice's argument that there was no ongoing emergency because the victim called from her neighbor's house, finding that
Although the victim was able to flee to a neighbor's house to use the phone, the defendant was still present at the scene. Consequently, the victim could have reasonably feared that the defendant might pursue her and that she could not safely return to her own apartment. The victim was also in need of medical attention. An ongoing emergency may still exist even though the victim and the assailant are physically separated at the time the 911 call is made.