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Univ. of South Carolina School of Law

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Wednesday, April 13, 2011

New Rules: Court Of Appeals Of Georgia Applies New Framework To Find Statement Nontestimonial, Cites EvidenceProf

As I have previously noted,

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, finding that 

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. 

In Michigan v. Bryant, the United States Supreme Court had to decide whether [a crime victim]'s statements were testimonial or nontestimonial under this "primary" purpose test.

After creating a new Confrontation Clause framework, the Court in Bryant found that the victim's statements were nontestimonial. In its recent opinion in Philpot v. State, 2011 WL 982978 (Ga.App. 2011), the Court of Appeals of Georgia became one of the first courts to apply this new framework, and it reached the same conclusion based upon somewhat similar facts. And, it cited to this blog. So I got that goin' for me.

As noted, in Bryant,

police found Anthony Covington in a gas station parking lot, with Covington claiming that he had (1) been shot by Richard Bryant outside Bryant's house, and then (2) driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial.

In the process of finding Covington's statements nontestimonial, the Court made several important conclusions regarding how courts are to determine the primary purpose of a statement:

(1) the test is objective, not subjective;

(2) the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation;

(3) the formality or informality of an encounter between a victim and police is relevant but not dispositive;

(4) the zone of potential victims is relevant; and

(5) the weapon used and the medical state of the victim are relevant.

So, that takes us to Philpot. In Philpot, Joshua E. Philpot was convicted on two counts of burglary, one count of being a "Peeping Tom," one count of entering an automobile, one count of simple assault, and two counts of criminal trespass. The statements at issue actually came from a prior victim of an alleged burglary by Philpot. Specifically,

the officer who investigated the prior burglary testified that on the date in question, he responded within a few minutes to a report that a burglary had occurred only moments ago at the home of the prior victim. Upon the officer's arrival at the prior victim's home, she told him that she heard a noise in her kitchen, and that when she went to investigate it, she saw a young man (later identified as Philpot) climbing into her home through the kitchen window while holding a knife. She further told the officer that once she began screaming, the young man fled. After speaking with the officer for a few more minutes, the prior victim looked out her window and exclaimed that the burglar (Philpot) was standing in the backyard of a home across the street. Consequently, the officer immediately began chasing Philpot and eventually arrested him.

In deciding whether these statements were testimonial, the court noted that

While this case was pending, the Supreme Court of the United States published its decision in Michigan v. Bryant, which-as some scholars have already noted-substantially alters and expands the framework for analyzing whether an out-of-court statement being challenged on Confrontation Clause grounds is testimonial or nontestimonial in nature.

As support for this claim, the court cited to Richard Friedman's excellent Confrontation Blog and this blog. Applying the new Confrontation Clause analysis, the court then concluded that

the prior victim's statements to the officer were primarily offered to enable police assistance to meet an ongoing emergency, and are therefore nontestimonial in nature; as such, the complained-of statements do not implicate the safeguards afforded by the Confrontation Clause. Here, the officer responded to the prior victim's 911 call within just a few minutes and found her to still be "shaken up" from her confrontation with the burglar as he questioned her in the home's kitchen (an informal setting). Accordingly, under our case law, the prior victim's statements to the officer were admissible as part of the res gestae of the crime (which, as noted supra, is a relevant consideration under Bryant ). Additionally, while the (at that time) unidentified burglar had already fled the scene of the prior victim's home by the time the officer arrived, it could have reasonably been presumed by both the prior victim and the officer that the burglar, who had just left the scene of the crime armed with a knife, was still in the immediate vicinity. Thus, while the prior victim was no longer being immediately threatened, similar to the situation in Bryant, the armed perpetrator was still on the loose, and thus continued to pose a serious potential threat to the prior victim and her neighbors. Indeed here, the police officer, unlike the officers in Bryant, had reason to believe that the armed perpetrator was still in the immediate area. In sum, because the circumstances surrounding the interrogation, as well as the statements and actions of the prior victim and responding officer, objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, the prior victim's identification of Philpot as the burglar and her description of his actions were not testimonial in nature and did not violate the Confrontation Clause. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/04/as-i-have-previously-noted-incrawford-v-washington-541-us-36-2004-the-supreme-court-found-that-that-the-confrontatio.html

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