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Ancerson v. State (4/15/2005) ap-1978
Ancerson v. State (4/15/2005) ap-1978
NOTICE
The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal errors to the attention of the Clerk of
the Appellate Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH L. ANDERSON, )
) Court of Appeals No. A-8064
Appellant, ) Trial Court No. 3AN-00-10216 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1978 - April 15, 2005]
)
Appeal from the Superior Court, Third Judicial District,
Anchorage, Dan A. Hensley, Judge.
Appearances: Colleen A. Libbey and Daniel E. Libbey,
Anchorage, for Appellant. Kenneth J. Diemer, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
In the early morning of December 1, 2000, the Anchorage police received a
911 call from a woman; the woman reported that she had been physically assaulted.
When a police officer arrived on the scene, the woman told the officer that someone else
was hurt. The woman led the officer to a nearby apartment, where a man was lying on
the floor. When the officer asked this man what had happened, the man answered that
?Joe? ? the defendant, Joseph L. Anderson ? had hit him with a pipe.
At Anderson?s trial, the injured man did not testify, but his out-of-court
statement was presented to the jury through the hearsay testimony of the police officer.
The trial judge ruled that the man?s statement was admissible as an excited utterance
under Alaska Evidence Rule 803(2). In our first decision in Anderson?s case, we upheld
that evidentiary ruling.1
Now, however, we must decide a question of federal constitutional law:
Even though the injured man?s statement was admissible as an excited utterance under
Alaska Evidence Rule 803(2), was the police officer?s hearsay testimony concerning this
out-of-court statement barred by the Confrontation Clause of the United States
Constitution?
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004), the United States Supreme Court construed the Confrontation Clause to prohibit
the government from introducing hearsay testimony describing ?testimonial? out-of-court
statements (unless the government proves (a) that the person who made the out-of-court
statements is unavailable as a witness and (b) that the defendant had a prior opportunity to
cross-examine this person concerning those statements). The issue in Anderson?s case is
whether the injured man?s response to the officer?s question, ?What happened??, qualifies
as ?testimonial? hearsay under Crawford.
For the reasons explained here, we conclude that the injured man?s response
was not ?testimonial? for purposes of the Confrontation Clause. Because hearsay
testimony concerning this out-of-court statement was not barred by the Confrontation
Clause, and because (as we concluded in our previous decision) the statement was
admissible as an excited utterance under Alaska?s evidence rules, Anderson?s trial judge
properly allowed the police officer to testify concerning the injured man?s out-of-court
statement.
Facts and proceedings
In the early morning of December 1, 2000, Zonyua Robinson placed a 911
call to the Anchorage Police Department. Robinson informed the police that Joseph
Anderson had just assaulted her.
Anchorage Police Officer Pam Nelson was dispatched to the Arctic Tern Inn
to contact Robinson. When Officer Nelson contacted Robinson, she was bleeding and
was very upset. Robinson told Officer Nelson that there was someone else who was hurt
and needed help. She led the officer to a nearby apartment, where an injured man ?
Carroll Nelson ? was lying on the floor, covered with a blanket or bedspread.
According to Officer Nelson?s later testimony, Robinson asked Carroll
Nelson if he was all right. Carroll Nelson replied that he was hurt, and that he was having
a hard time breathing. When Officer Nelson removed the covering from Carroll Nelson?s
body, she observed that Nelson was not wearing a shirt, and that he had several obvious
bruises on his torso. According to Officer Nelson, Carroll Nelson appeared to be in a lot
of pain.
At this point, Officer Nelson asked him, ?What happened?? Carroll Nelson
responded that ?Joe? had hit him with a pipe.
Carroll Nelson did not testify at Anderson?s trial. However, Officer Nelson
was allowed to testify concerning this out-of-court statement. The trial judge ruled that
Carroll Nelson?s response to the officer?s question was admissible as an excited utterance
under Alaska Evidence Rule 803(2).
Later, when Anderson appealed his conviction to this Court, we affirmed
this evidentiary ruling. In reaching this conclusion, we relied on the United States
Supreme Court?s decision in Ohio v. Roberts.2 In Roberts, the Supreme Court ruled that
the hearsay exception for excited utterances was a ?firmly rooted hearsay exception,? and
thus any out-of-court statement that qualified as an excited utterance inherently carried
sufficient indicia of trustworthiness to satisfy the Confrontation Clause of the United
States Constitution.3
Following our decision, Anderson petitioned the Alaska Supreme Court to
hear his case. While Anderson?s petition was pending, the United States Supreme Court
decided Crawford v. Washington. In Crawford, the Supreme Court overruled Ohio v.
Roberts and announced a new interpretation of the Confrontation Clause. Crawford holds
that the Confrontation Clause flatly prohibits the government from introducing
?testimonial? hearsay, no matter how much the circumstances surrounding the making of
the out-of-court statement might indicate that the statement is trustworthy, unless the
defendant has had a prior opportunity to cross-examine the speaker regarding the out-of-
court statement, and unless the government demonstrates that the speaker is unavailable
to testify at the defendant?s trial.
Because Crawford announced a new Confrontation Clause analysis, the
Alaska Supreme Court remanded Anderson?s case to us so that we might reconsider our
decision in light of Crawford.
Crawford v. Washington
Michael D. Crawford was tried in the State of Washington for assault and
attempted murder. Crawford had stabbed Kenneth Lee and claimed self defense.
Crawford?s wife, Sylvia, had seen the stabbing and had been extensively interrogated by
the police soon afterwards. Sylvia did not testify at Crawford?s trial because Crawford
exercised Washington?s marital privilege, which bars a spouse from testifying without the
other spouse?s consent. But the State was able to introduce, over Crawford?s objections,
Sylvia?s tape-recorded statements to the police, which the State offered as evidence that
Crawford had not stabbed Lee in self defense. The State argued that Sylvia?s statement
was admissible, although hearsay, because it was a statement against penal interest.4 The
trial court and the Washington Supreme Court concluded that admission of Sylvia?s
statement did not violate Crawford?s federal constitutional right to confrontation. The
courts relied on Ohio v. Roberts. The Washington Supreme Court concluded that,
although Sylvia?s statement did not fall under a firmly-rooted hearsay exception, the
statement had sufficient guarantees of trustworthiness to satisfy the Confrontation
Clause.5 The United States Supreme Court granted certiorari.
In the Crawford decision, the Supreme Court reexamined its decision in
Ohio v. Roberts. Under Ohio v. Roberts, a witness?s out-of-court statement could be
admitted if it had ?adequate indicia of reliability.? A statement had adequate indicia of
reliability if it fell within a ?firmly rooted hearsay exception? or had ?particularized
guarantees of trustworthiness.?6 But in Crawford, the Court concluded that the Ohio v.
Roberts test was fundamentally flawed. First, the Court pointed out the unpredictability
of factors which courts used to determine whether a hearsay statement had sufficient
indicia of reliability to satisfy the Confrontation Clause.7 The Court pointed out that
factors which courts used to determine that a statement was reliable were often
contradictory.
But the Court found that the ?unpardonable vice of the Roberts test [was]
not its unpredictability, but its demonstrated capacity to admit core testimonial statements
that the Confrontation Clause plainly meant to exclude.?8 The Court concluded that
testimonial hearsay evidence could not be admitted unless the witness who made the out-
of-court statement was unavailable and had been previously cross-examined. The Court
did not define what testimonial hearsay was. But the Court defined a witness as
someone who ?bear[s] testimony? and defined ?testimony? as ?[A] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.?9 The Court then
set out some examples of statements which were testimonial:
Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.
We leave for another day any effort to spell out a
comprehensive definition of ?testimonial.? Whatever else the
term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a formal trial;
and to police interrogations. These are the modern practices
with closest kinship to the abuses at which the Confrontation
Clause was directed.[10]
Crawford?s description of ?testimonial? statements clearly includes
statements made to the police during a formal interrogation. But the Supreme Court did
not define what constituted interrogation. The Court stated that ?Sylvia?s recorded
statement, knowingly given in response to structured police questioning, qualifies under
any conceivable definition [of testimonial].?11 But the Court stated that ?[w]e use the
term ?interrogation? in its colloquial, rather than any technical legal, sense.?12 The Court
also stated that testimonial statements were ?statements that were made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.?13
The Court further explained that ?[w]here nontestimonial hearsay is at issue,
it is wholly consistent with the Framers? design to afford the [s]tates flexibility in their
development of hearsay law ... as would an approach that exempts such statements from
Confrontation Clause scrutiny altogether.?14 The essential question in Confrontation
Clause analysis has thus become whether or not a particular out-of-court statement was
?testimonial.?
Applying Crawford to Anderson?s case
Turning to Anderson?s case, the question is whether Carroll Nelson?s
statement to Officer Nelson that ?Joe? had hit him with a pipe was testimonial. In
Crawford, the Supreme Court stated that ?interrogations by law enforcement officers fall
squarely within [the class of statements that are testimonial hearsay.]?15 The Supreme
Court did not define ?interrogation? but stated that ?[w]e use the term in its colloquial,
rather than any technical legal sense.?16
In determining the colloquial definition of interrogation, it seems logical for
us to turn to the dictionary. The American Heritage Dictionary of the English Language
defines interrogate as ?to examine by questioning formally or officially.?17 The Merriam-
Webster Dictionary of Law provides the definition of ?to question formally and
systematically.?18 From these definitions, we conclude that Officer Nelson did not
interrogate Carroll Nelson when she asked him, ?What happened?? The questioning does
not seem to fall within the category of formal, official, and systematic questioning.
In addition, the Crawford Court pointed out that the Confrontation Clause
applies to ?witnesses against the accused.?19 The Court defined a witness as someone
who ?bear[s] testimony? and defined ?testimony? as ?[a] solemn declaration or
affirmation made for the purposes of establishing or proving some fact.20 The Court?s
definition of ?witness? also seems to imply a certain structure or formality. The
Crawford case also stated that testimonial statements were ?statements that were made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.?21 Although the Supreme Court?s
wording could be given a number of different interpretations, when we consider this
wording in light of the definitions of ?interrogate? and ?witness,? the Supreme Court
appears to be speaking of more formal statements than the single excited response at issue
in Anderson?s case.
We have previously upheld Judge Hensley?s determination that Carroll
Nelson?s statement was admissible as an excited utterance.22 An excited utterance is ?[a]
statement relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.?23
To be admissible as an excited utterance, an out-of-court
statement must have been made while the declarant was under
?a condition of excitement which temporarily still[ed] the
capacity [for] reflection and produce[d] utterances free of
conscious fabrication.? The declarant?s spontaneity, a
product of the emotions being experienced by the declarant, is
the key factor in determining the admissibility of the
statement.[24]
The finding that Carroll Nelson?s statement was an excited utterance,
particularly under the facts of this case, appears to be inconsistent with the conclusion that
Carroll Nelson was a ?witness,? as the Supreme Court defined the word in Crawford, or
that his statements were made ?under circumstances which would lead an objective
witness to reasonably believe that the statement would be available for use at a later
trial.?25
All we have shown by this analysis is that Carroll Nelson?s statement does
not appear to fall within the category of statements that the United States Supreme Court
defined as clearly testimonial in Crawford. While the Court explained what core
statements would be regarded as testimonial, it did not explain the full reach of its
decision. The Court declined to say that all statements which were made in response to
police questioning would be testimonial or that any hearsay statement which directly
implicated a defendant would violate the Confrontation Clause. We conclude that the
out-of-court statement at issue in this case can be deemed non-testimonial even though it
was made to a police officer, and even though it directly implicated Anderson.
We have reviewed the numerous decisions which have interpreted
Crawford. The great majority of courts which have considered this question have
concluded that an excited utterance by a crime victim to a police officer, made in
response to minimal questioning, is not testimonial.26 We are persuaded by these cases
that the statement which Carroll Nelson gave to Officer Nelson was not testimonial and
that admission of the statement does not violate the Confrontation Clause.
We have found three cases arguably arriving at a contrary conclusion. Two
of these cases are readily distinguishable from Anderson?s case. In re E.H.,27 is a case
where the alleged victims, ages five and two at the time of the offense, reported to their
grandmother that their thirteen-year-old babysitter had sexually assaulted them over a
year before. The trial court allowed these statements under an Illinois rule which
permitted the statements of a child under thirteen years old to be admitted in a prosecution
for physical or sexual assault if the child was unavailable and there was ?corroborative
evidence of the act which is the subject of the statement.?28 The appellate court held that
the children?s statements were testimonial under Crawford. The case is helpful to
Anderson?s position because in determining that the statements are testimonial, the
appellate court stated that the hearsay statements ?bore accusatory testimony against [the
defendant] which offered to prove the truth of the matter asserted specifically, that E.H.
sexually assaulted her.?29 But that case is distinguishable. The victims? statements were
not excited utterances and the statements were not made to the authorities.
In Washington v. Powers,30 the Court held that a tape-recorded 911 call
reporting a violation of a domestic violence restraining order was a testimonial statement.
The Court concluded that the purpose of the 911 call was to report a violation of the
restraining order to allow the police to apprehend the defendant and was not made ?under
the stress of immediate threat of harm nor was [the defendant] still present.? The alleged
victim?s statements were made in response to several questions by the 911 operator. The
case is distinguishable because the statements were made in response to several questions
and by the court?s finding that the purpose of the call was to initiate a criminal
prosecution. Lopez v. State31 is the case which comes the nearest to directly
supporting Anderson?s argument. The police responded to a kidnaping report and
contacted Ruiz. The officer asked Ruiz what happened, and Ruiz reported that Lopez had
abducted him at gunpoint and pointed at Lopez, who was twenty-five yards away. The
Court concluded that it was reasonable for the trial court to find that the kidnaping had
occurred shortly before the police arrived and that Ruiz?s statement to the police was an
excited utterance. But the Court concluded that Ruiz had to know that his statement to
the police was ?a formal report of the incident that would be used against the
defendant.?32 The Court held that Ruiz?s statement to the police was testimonial. It is
not clear how the Florida Court would approach the facts of the present case. The
Florida Court?s decision apparently stands alone. We conclude that we should follow the
emerging majority view on the admissibility of excited responses to brief on-the-scene
questioning by police officers.
We accordingly uphold the admission of Carroll Nelson?s out-of-court
statement.
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
We are asked to decide whether a crime victim?s one-sentence response to a
police officer?s on-the-scene question, ?What happened??, should be deemed
?testimonial? for purposes of the Confrontation Clause analysis announced by the United
States Supreme Court in Crawford v. Washington.1 I agree with my colleagues that this
kind of out-of-court statement is not testimonial.
As Justice Scalia himself conceded, his majority opinion in Crawford does
not offer a precise definition of ?testimonial?.2 Instead of giving us a definition, the
Crawford opinion merely describes by example. One of the Supreme Court?s examples
of testimonial hearsay is an out-of-court statement procured through police interrogation:
Whatever else the term [?testimonial?] covers, it applies at a
minimum to prior testimony at a preliminary hearing [or]
before a grand jury[; and to testimony] at a former trial; and to
police interrogations.
Crawford, 541 U.S. at __, 124 S.Ct. at 1374.
Interpreting the phrase ?police interrogation? in
its broadest sense, any answer to a question posed by a police
officer might be viewed as a statement procured through
police interrogation. But I conclude that such a broad
interpretation of ?interrogation? would be a misreading of
Crawford.
First, just as Crawford refused to adopt a
definition of ?testimonial?, Crawford likewise refused to
adopt a definition of ?interrogation?. True, Justice Scalia
stated that he was using ?interrogation? in its ?colloquial?
sense. But the colloquial meanings of words are normally
ascertainable. In contrast, Justice Scalia appears to have used
the adjective ?colloquial? because he believed that it
embraced a degree of uncertainty or ambiguity. That is, he
wished to avoid giving a precise definition of ?interrogation?:
We use the term ?interrogation? in its colloquial
[sense] rather than any technical legal ... sense. Cf. Rhode
Island v. Innis, 446 U.S. 291, 300-01 ... (1980). Just as
various definitions of ?testimonial? exist, one can imagine
various definitions of ?interrogation,? and we need not select
among them in this case. [Crawford?s wife?s] recorded
statement, knowingly given in response to structured police
questioning, qualifies under any conceivable definition [of
?interrogation?].
Crawford, 541 U.S. at __, 124 S.Ct. at 1365 n. 4.
Nevertheless, as Judge Coats points out in his
majority opinion, even this vaguely contoured definition does
provide insight into what the Crawford court intended by its
use of the term ?interrogation?. As used in everyday speech,
?interrogate? has a more limited meaning than ?ask? or
?inquire? or even ?question?. An ?interrogation? is a formal,
systematic questioning that is conducted to advance an
official investigation or inquiry.
Prisoners are interrogated. Suspects are
interrogated. And, although we normally speak of witnesses
being ?examined? at a trial or at an inquest, one might
reasonably describe this process as an interrogation. But
when you happen on the scene of a traffic accident and you
ask a bystander, ?What happened??, or when you see a large
crowd gathered in front of a store and you ask, ?What?s going
on??, these are not ?interrogations?.
Given Crawford?s admonishment that
?interrogation? should be understood in its colloquial sense, it
appears that what occurred in Anderson?s case ? a police
officer arriving at the scene of a reported crime and asking,
?What happened here?? ? does not constitute an
interrogation.
This conclusion is bolstered by the fact that the
Supreme Court?s decision in Crawford rests on a lengthy
exploration of the origins of the Confrontation Clause.
As described in Crawford, the Confrontation
Clause was a direct response to repeated abuses of the power
of inquest ? the power to force people to appear and give a
statement, under oath or otherwise, to a government official or
to a legislative body investigating a potential crime.
According to Crawford, the abuse was not the inquest itself.
(Indeed, the grand jury inquest and the coroner?s inquest are
still fixtures of American law.) Rather, the abuse was that
these inquisitorial proceedings were employed to obtain
accusatory statements that were later introduced, as hearsay,
at criminal trials. That is, these accusatory statements were
used against criminal defendants, even though the makers of
these statements were never brought to court so that the
defendants might cross-examine them. Crawford, 541 U.S. at
__, 124 S.Ct. at 1359-1367.
In the course of his explication of the
Confrontation Clause, Justice Scalia explained why the
Crawford majority concluded that police interrogations are
analogous to the ex parte examinations conducted by royal
officials under their inquest power:
Police interrogations bear a striking resemblance to
examinations by justices of the peace in England. The
statements are not sworn testimony, but the absence of oath
was not dispositive. [Lord] Cobham?s examination [before
the Privy Council] was unsworn, ... yet [Sir Walter] Raleigh?s
trial [at which Cobham?s accusatory out-of-court statement
was introduced] has long been thought a paradigmatic
confrontation violation ... .
That [the] interrogators are police officers rather than
magistrates does not change the picture either. Justices of the
peace conducting examinations under the Marian statutes
were not magistrates as we understand that office today, but
had an essentially investigative and prosecutorial function. ...
England did not have a professional police force until the
19th century, ... so it is not surprising that other government
officers performed the investigative functions now associated
primarily with the police. The involvement of government
officers in the production of testimonial evidence presents the
same risk, whether the officers are police or justices of the
peace.
Crawford, 541 U.S. at __, 124 S.Ct. at 1364-65 (emphasis in
the original) (citations omitted).
This passage from Crawford reinforces my
conclusion that, when the Supreme Court used the phrase
?police interrogation?, the Court was not referring to the kind
of brief, on-the-scene questioning that occurred in Anderson?s
case. Rather, the Supreme Court was referring to the kind of
formal, systematic questioning that was characteristic of the
English inquisitorial practices that prompted the enactment of
the Confrontation Clause.
This interpretation is consistent with the facts of
Crawford. Michael Crawford and his wife, Sylvia, paid a
visit to Richard Lee at Lee?s apartment. During this visit,
Michael Crawford stabbed and killed Lee (purportedly
because Lee had attempted to sexually assault Sylvia
Crawford).3 Later that night, the police arrested Michael
Crawford for the homicide. However, it appears that Sylvia
Crawford was also suspected of having a role in this crime.
According to the United States Supreme Court?s opinion, both
Michael and Sylvia were given Miranda warnings, and
?police detectives interrogated each of them twice?.4
According to the facts recited in the Washington Supreme
Court?s opinion, all four of these interviews were taped, and
the second set of interviews occurred ?[s]everal hours after
[the] police [conducted] the first [interviews]?.5
In other words, Sylvia Crawford was subjected
to prolonged and systematic police questioning regarding the
homicide. And, as was true when the Privy Council
interrogated Lord Cobham in its investigation of Walter
Raleigh?s potential treason, the person being interrogated ?
Sylvia Crawford ? knew that she herself was suspected of
complicity in the crime under investigation.
Given these facts, one can see why the Crawford
majority concluded that the police interrogation of Sylvia
Crawford was analogous to the type of ex parte interrogations
by royal officials that took place under English law in the
sixteenth, seventeenth, and eighteenth centuries ? and, thus,
why the Confrontation Clause barred the government from
introducing evidence of Sylvia?s answers through the hearsay
testimony of a police officer.
In contrast, the evidence at issue in Anderson?s
case is a single sentence uttered by the victim of a crime in
response to a police officer?s on-the-scene question, ?What
happened?? These facts do not fall within the rationale of the
Crawford decision, and thus the Crawford decision does not
apply to these facts.
For these reasons, I agree with my colleagues
that the Confrontation Clause did not bar the State from
introducing hearsay testimony that the victim in this case
answered the officer?s question by stating, ?Joe hit me with a
pipe.?
1 See Anderson v. State, Alaska App. Memorandum Opinion and Judgment at 5-8
No. 4823 (January 28, 2004).
2 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
3 448 U.S. at 66, 100 S.Ct. at 2539.
4 Wash. Rule Evid. 804(b)(3); A.R.E. 804(b)(3).
5 Crawford, 541 U.S. at _____, 124 S.Ct. at 1358.
6 Roberts, 448 U.S. at 66.
7 Crawford, 541 U.S. at _____, 124 S.Ct. at 1371.
8 Id. at 1371.
9 Id. at 1364 (quoting 1 N. Webster, An American Dictionary of the English
Language (1828)).
10 Id. at 1374 (footnote omitted).
11 Id. at 1365 n.4.
12 Id. (footnote omitted).
13 Id. at 1364.
14 Id. at 1374.
15 Id. at 1365.
16 Id. at 1365 n.4 (footnote omitted).
17 American Heritage Dictionary of the English Language (4th ed. 2000) (visited
March 23, 2005) .
18 Merriam-Webster Dictionary of Law (1996) (visited March 23, 2005)
.
19 Crawford, 541 U.S. at _____, 124 S.Ct. At 1364.
20 Id. at 1354 (quoting 1 N. Webster, An American Dictionary of the English
Language (1828)).
21 Id. at 1364.
22 Alaska R. Evid. 803(2).
23 Id.
24 Dezarn v. State, 832 P.2d 589, 591 (Alaska App. 1992) (quoting Commentary to
Alaska Evidence Rule 803(1)-(2), third paragraph) (citations omitted).
25 Crawford, 124 S.Ct. at 1364.
26 See People v. Cage, 15 Cal.Rptr.3d 846, 848 (Cal. App. 2004) (holding that
hearsay statement made at the hospital to police that defendant had cut him was not
testimonial because the interview was ?unstructured? and ?informal and unrecorded?)
petition for review granted 19 Cal.Rptr.3d 824 (Cal. 2004); Leavitt v. Arave, 371 F.3d 663,
683 n.22 (9th Cir. 2004) (murder victim calls police night before death to report that
defendant had broken into her home ? court concluded that this was excited utterance and
non-testimonial because victim initiated contact, was not interrogated, and her motive in
calling was only to obtain ?help in a frightening intrusion into her home?); Stancil v. United
States, 866 A.2d 799, 815 (D.C. App. 2005) (holding that excited utterances made to police
officers are testimonial only when given in response to ?questioning in a structured
environment?); United States v. Webb, 2004 WL 2726100, at *4 (D.C. Super. 2004) (Officer
dispatched to scene of assault asks victim ?What happened?? Victim states that defendant
punched her in the face. Victim?s statement held non-testimonial); Fowler v. State, 809
N.E.2d 960, 961-66 (Ind. App. 2004) (held that statements to police in response to informal
police questioning at the scene of a crime shortly after crime occurred are not testimonial);
State v. Barnes, 854 A.2d 208, 211-12 (Me. 2004) (Defendant charged with murder of his
mother. In an earlier incident, the mother went to police station in tears stating that
defendant had tried to kill her. Statements admitted as excited utterance. Mother?s
statements non-testimonial because she had gone to the police on her own while under the
stress of the alleged assault and police only asked questions to determine why she was upset);
People v. Bryant, 2004 WL 1882661, at *1 (Mich. App. 2004) (murder victim?s statement
that ?Rick shot me? was not testimonial because police had only asked ?What happened??);
State v. Forrest, 596 S.E.2d 22, 29 (N.C. App. 2004) (Kidnaping victim?s statements to
police shortly after being rescued were admissible as excited utterances and not testimonial.
The police asked no questions and victim gave account of crime); People v. Mackey, 785
N.Y.S.2d 870, 874 (N.Y. City Crim. Ct. 2004) (assault victim?s statements to police non-
testimonial where she initiated contact with officers immediately after defendant punched her
? her statements were made to seek immediate protection rather than initiate a prosecution,
and there was no formal police questioning); People v. Moscat, 777 N.Y.S.2d 875, 880 (N.Y.
City Crim. Ct. 2004) (911 call made by domestic violence victim to obtain emergency help is
non-testimonial. Call made to get help, not to initiate prosecution); People v. Watson, 2004
WL 2567124, at **14 (N.Y. Sup. 2004) (Armed robbery victim makes statements to police
immediately following crime. Victim?s first spontaneous statement to police that ?that man
just robbed me? was not testimonial. Second statement in response to police question if there
was anyone else involved, that defendant ?was the only one? was not in response to a
?structured question asked with an eye towards trial? but was designed to secure the area, and
also not testimonial. Victim?s further responses to police questioning were testimonial);
United States v. Griggs, 2004 WL 2676474, at *5 (S.D.N.Y. 2004) (Police officer dispatched
to scene hears declarant say, ?Gun! Gun! He?s got a gun!? and observed declarant gesture
towards defendant. Statement held nontestimonial); State v. Anderson, 2005 WL 174441
(Tenn. Crim. App. 2005) (holding that excited utterances made to police officers responding
to reported crime are not ?testimonial?); State v. Maclin, 2005 WL 313977, at *17 (Tenn.
Crim. App. 2005) (domestic violence victim?s statements made to responding police officer
were excited utterances and not testimonial); Key v. State, __ S.W.3d __ , 2005 WL 467167,
at *5 (Tex. App. 2005) (holding that excited utterance made by victim to officer responding
to scene of assault was not testimonial); State v. Orndorff, 95 P.3d 406, 408 (Wash. App.
2004) (where witness told police she saw man with a gun downstairs, saw two men leave,
was panic-stricken and tried to dial 911, statement held to be non-testimonial).
27 _____ N.E.2d _____, 2005 WL 195376 (Ill. App. 2005).
28 Id. at *1.
29 Id. at *6.
30 99 P.3d 1262, 1263-66 (Wash. App. 2004).
31 888 So.2d 693, 697 (Fla. Dist. Ct. App. 2004).
32 Id. at 700.
1 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
2 Crawford, 541 U.S. at __, 124 S.Ct. at 1374 & n. 10.
3 Crawford v. Washington, 541 U.S. at __, 124 S.Ct. at 1356-57; State v. Crawford,
54 P.3d 656, 658 (Wash. 2002).
4 Crawford v. Washington, 541 U.S. at __, 124 S.Ct. at 1357.
5 State v. Crawford, 54 P.3d at 658.
?13? 1978
?22? 1978
