EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, October 6, 2011

Defusing Confrontation: Supreme Judicial Court Of Massachusetts Applies Bryant To Find No Confrontation Clause Violation

Back in February, the Supreme Court decided Michigan v. Bryant, its latest Confrontation Clause case decided in the wake of its landmark opinion in Crawford v. Washington, 541 U.S. 36 (2004). Part of what the Court did in Bryant was to flesh out a dichotomy it created in Davis v. Washington, 547 U.S. 813 (2004). In Crawford, the Court in effect held

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

Thereafter, in Davis, the Court concluded 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 Bryant, the Court thereafter laid out a nonexhaustive list of circumstances to consider when determining whether an ongoing emergency exists, rendering the declarant's statement nontestimonial. So, what will courts do with these factors? The recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Smith, 2011 Wl 3505497 (Mass. 2011), might provide a pretty good indication.

In Smith, Darrell Smith was convicted of armed robbery, possession of a firearm without a license, as a subsequent offender, and as an armed career criminal, and various other firearm offenses. Smih allegedly robbed Elizabeth Splaine in her car; Mahogany Penn was also in the car. Police later arrived at the scene of the crime and began speaking with Splaine. During this interrogation, Penn emerged from an apartment building and then later returned to the apartment building. One of the officers recognized Splaine from an incident in an apartment at the apartment building that occurred one week earlier. The officers then proceeded to that apartment,

knocked on the door, announced, "Boston Police," and asked if anyone was home; there was no answer. As the officers began to leave the hallway, Penn quickly ran out of the apartment with her hands up. According to the officers, she appeared "visibly shaken," "very nervous" and "frantic." Penn stated, "He has a gun. He's wrapping it in a black sock."

The "he" was Smith, and, at trial, the prosecution introduced Penn's statement despite the fact that she did not testify. The Supreme Judicial Court of Massachusetts later determined in response to Smith's appeal that the statement was admissible under an exception to the rule against hearsay for spontaneous utterances. That left the question of whether the admission of Penn's statement violated the Confrontation Clause.

According to the court, in Michigan v. Bryant, the Supreme Court

enumerated a nonexhaustive list of circumstances to consider when determining whether an emergency exists: (1) whether an armed assailant poses a substantial threat to the public at large,...(2) the type of weapon that has been employed,...(3) the severity of the victim's injuries,...(4) the formality of the interrogation,...and (5) the involved parties' statements and actions....Additional considerations include whether the victim's safety is at substantial imminent risk....

And, according to the court, application of these factors compelled the conclusion that Penn's statement was nontestimonial:

Although the defendant was inside his apartment, the apartment door was open, exposing innocent neighbors to the whims of a gun-wielding suspect....Similarly, it is significant that the weapon at issue was a firearm that could have been used against police with lethal force....Further, the statement was informal and not prompted by police questioning....At the moment Penn emerged from the apartment, the police had already turned to leave, and they reinserted themselves into the situation for the sole purpose of meeting the potential new threat. The officers pulled Penn to safety, drew their weapons, aimed them on the door, called for backup, and prepared for a possible confrontation....Finally, the whereabouts of the suspect were unknown....The police did not know whether he was edging toward the apartment door or edging toward the balcony.

Thus, the court found no Confrontation Clause violation.



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