Monday, October 25, 2010
Your Friends & Neighbors: Court Of Appeals Of Michigan Finds Statements Of Abuse To Neighbors Are Not Testimonial
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." So, does is a statement by an alleged victim to her neighbor about an act of abuse committed against her "testimonial" and possibly violative of the Confrontation Clause? According to the recent opinion of the Court of Appeals of Michigan in People v. Stenberg, 2010 WL 3984639 (Mich.App. 2010), the answer is "no."
In Stenberg, Edward Stenberg was convicted of first-degree murder, being a felon in possession of a firearm, and two counts of possession of a firearm during the commission of a felony. Stenberg allegedly murdered his wife, and, at trial, the prosecution called a neighbor to testify that the wife previously told him that Stenberg had assaulted her with a blackjack and tried to suffocate her with a pillow.
Upon Stenberg's ensuing appeal, the Court of Appeals of Michigan found that this testimony was properly admitted under Michigan's domestic violence exception to the propensity character evidence proscription and that Stenberg failed to preserve the issue of whether his wife's statement qualified as an excited utterance for appellate review. That left the issue of whether the introduction of the wife's statement ran afoul of the Confrontation Clause.
The Court of Appeals of Michigan found that it did not because the statement was not testimonial. According to the court,
The Crawford Court "le[ft] for another day," a comprehensive definition of "testimonial."... Id. But it did mention that testimonial statements would include, at a minimum, police interrogations and prior testimony from a preliminary hearing, a grand jury, or a trial....The Court explained that “"[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."...The Court later, while addressing only "police interrogations," determined that not all statements during police interrogations were testimonial. Davis v. Washington, 547 U.S. 813, 822....Statements made during police interrogations are testimonial when made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial....
Here, the statements at issue are the ones [the wife] gave to her neighbor, describing the assault. First, it is obvious that the circumstances surrounding this statement vastly differ from those mentioned in Crawford. The statements do not involve police interrogation or testimony from any prior proceeding. Second, even if one applies the police interrogation test described in Davis, it is apparent that an objective witness would not reasonably believe that her statements to a neighbor would be available for use at a later trial. In fact, the United States Supreme Court stated, in dicta, that statements to "friends and neighbors about abuse and intimidation" are nontestimonial and do not implicate the Confrontation Clause. Giles v. California, --- U.S. ----; 128 S Ct 2678, 2692-2693; 171 L.Ed.2d 488 (2008). Because Laura's statements to her neighbor were permissible under [the domestic violence exception], qualified as an excited utterance exception to hearsay, and were not testimonial, the trial court did not err when it admitted the statements, and defendant's claim fails.