MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 43
Docket: And-18-181
Argued: December 11, 2018
Decided: March 26, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
STATE OF MAINE
v.
DWAIN A. SYKES
HJELM, J.
[¶1] In this case, we again consider the admissibility of statements made
by the alleged victim of a domestic violence assault during a 9-1-1 call for
emergency assistance, when the victim does not testify at trial.
[¶2] Dwain A. Sykes appeals from a judgment of conviction entered in
the Unified Criminal Docket (Androscoggin County, Mills, J.) after a jury found
him guilty of domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A)
(2018). During the trial, the court admitted in evidence a recording of a 9-1-1
call after concluding, first, that the victim’s recorded statements fell within the
excited utterance exception to the hearsay rule, and, second, that the
statements were nontestimonial and thus not subject to exclusion by the
2
Confrontation Clause.1 Sykes asserts that the court erred in both respects. We
affirm the judgment.
I. BACKGROUND
[¶3] The following facts are drawn from the evidence presented at the
pretrial hearing on the admissibility of the evidence at issue here, and at trial,
with both records being viewed in the light most favorable to the State, see State
v. Metzger, 2010 ME 67, ¶ 2, 999 A.2d 947, and from the procedural record, see
In re Child of Nicholas G., 2019 ME 13, ¶ 2, --- A.3d ---.
[¶4] At the time of the assault, Sykes and the victim had been in a
relationship for a number of years and shared a home where they lived with
their children. On the morning of October 22, 2017, Sykes and the victim got
into an argument in their residence, which was a mobile home. During the
argument, Sykes twice hit the victim in her face with a closed fist. At
approximately 9:30 a.m., the victim called 9-1-1 to report the assault and
1 The issue of the admissibility of the 9-1-1 recording was presented to the court in a motion in
limine filed by the State on the day the trial was scheduled to begin. Sykes challenges the trial court’s
consideration of the State’s motion because it was not timely filed. See M.R.U. Crim. P. 12(c) (stating
that a party “may make a pretrial motion requesting a pretrial ruling on the admissibility of evidence
. . . no later than 7 days before the date set for jury selection”). Although, by rule, the State’s motion
should have been filed in advance of trial in order to “avoid anticipated disruption of the trial,” Field
& Murray, Maine Evidence § 103.7 at 26 (6th ed. 2007), Rule 12(c) is permissive. A late filing of the
motion does not foreclose the court from holding a hearing if, in exercising its discretion attendant
to sound case management, the court determines that doing so is the least disruptive way of
addressing the evidentiary issue. Here, the court did not err by holding the hearing, notwithstanding
the lateness of the motion.
3
request police assistance. During the call, which lasted fourteen minutes, the
victim sounded distressed and sometimes angry but was not audibly crying.
Largely in response to the 9-1-1 dispatcher’s questions, the victim described
the assault, which she said had occurred that morning. Most of the dialogue,
however, concerned what was then happening in the residence. Answering the
dispatcher’s questions, the victim told the dispatcher that Sykes was in an
adjacent room in the home with three children and was aware that she had
called 9-1-1. The victim also answered the dispatcher’s questions about Sykes
and what he was doing, about the house, and about potential safety concerns
for both the victim and the officers who were en route to the scene.
[¶5] The dispatcher told the victim several times that officers were
travelling to the scene but that she would keep the victim on the line until they
arrived. Approximately ten minutes into the call, the dispatcher told the victim
to instruct Sykes to go outside and wait for the officer. When the victim
conveyed that information to Sykes, a loud and angry-sounding male voice is
heard. Over the next several minutes, the dispatcher asked the victim a number
of times whether Sykes was still in the residence, and each time the victim
reported that he was. Finally, near the end of the call, the victim told the
dispatcher that an officer had arrived and Sykes had gone outside. At a number
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of points during the call, between the dispatcher’s questions, there were
lengthy periods when neither the dispatcher nor the victim spoke.
[¶6] The first police officer to arrive was a Maine State Police trooper.
After a brief conversation with Sykes outside of the residence, the trooper
spoke with the victim, who reported that Sykes had punched her twice in the
face. The trooper then returned to Sykes and arrested him.2 A second officer,
a sergeant with the Maine State Police, arrived at the home and spoke with the
victim. In the course of their conversation, the victim reenacted the assault and
described to the sergeant how Sykes had hit her. Although she allowed the
officer to take pictures of her injury, she declined to sign a written statement.
[¶7] About two weeks later, Sykes was charged with domestic violence
assault and pleaded not guilty. Anticipating the possibility that the victim
would not voluntarily testify against Sykes, the State served the victim with a
subpoena compelling her attendance at trial, which the court had scheduled for
April of 2018. On the day the trial was scheduled to begin, however, the victim
did not appear at the courthouse. At the State’s request, the court issued a
material witness warrant for the victim’s arrest, see M.R.U. Crim. P. 17(h), and
2 In a recording from the trooper’s dashboard camera, which was entered in evidence and played
for the jury, Sykes admitted that he had slapped the victim in the face but claimed that he had done
so in self-defense.
5
the State filed a motion in limine, requesting the court to determine the
admissibility of the three sets of statements made by the victim on the morning
of the assault, including the statements she made during the 9-1-1 call. Over
Sykes’s objection, see supra n.1, the court delayed the commencement of trial to
the next day and proceeded to hold an in limine hearing.
[¶8] During the hearing on the motion in limine, the court heard
testimony from the 9-1-1 dispatcher and listened to the recording of the 9-1-1
call. The court ultimately determined that the victim’s statements during the
9-1-1 call, although hearsay, were admissible as excited utterances, see M.R.
Evid. 803(2), and were nontestimonial and thus not barred from being
admitted in evidence by the Confrontation Clause, see U.S. Const. amend. VI; see
also Me. Const. art. I, § 6; Crawford v. Washington, 541 U.S. 36, 68 (2004);
Metzger, 2010 ME 67, ¶¶ 13-22, 999 A.2d 947.3
[¶9] The next morning, the victim voluntarily appeared at trial and was
ordered to remain at the courthouse under police supervision to ensure her
availability if called to testify. One of the State’s witnesses was the 9-1-1
3 The court excluded from evidence the two other sets of statements encompassed by the State’s
motion in limine after determining that the victim’s statement to the trooper that Sykes had hit her
was not admissible as an excited utterance, and that her similar statement to the sergeant was not
admissible as a statement of her then-existing physical condition, see M.R. Evid. 803(3). The State
does not challenge these rulings in this appeal.
6
dispatcher, through whom the 9-1-1 recording was admitted as evidence
without objection from Sykes and played for the jury. Sykes called two
witnesses to testify regarding allegedly exculpatory statements made by the
victim. Neither party called the victim as a witness.
[¶10] The next day, the case was submitted to the jury, which found
Sykes guilty. Following a sentencing hearing held later that month, the court
imposed a fully-suspended seven-month jail term and an eighteen-month
period of probation. Sykes filed a timely appeal. See 15 M.R.S. § 2115 (2018);
M.R. App. P. 2B(b)(1).
II. DISCUSSION
[¶11] Sykes asserts that the court erred by admitting in evidence the
recording of the victim’s 9-1-1 call because, he contends, that evidence is
inadmissible pursuant to the Maine Rules of Evidence and the Confrontation
Clause of the Sixth Amendment, U.S. Const. amend. VI, and article I, section 6 of
the Maine Constitution. We consider these assertions in turn after addressing
the standard of review.
A. Standard of Review
[¶12] At the in limine hearing, Sykes made clear that he objected to the
admission of the 9-1-1 recording, and after a contested hearing, the court ruled
7
that the evidence was admissible. When the State offered the recording in
evidence during the trial, however, Sykes explicitly stated to the court that he
had “[n]o objection” to its admission.
[¶13] “[T]he fact that the trial court has acted on a motion in limine does
not relieve counsel of making objections . . . at the appropriate points in the trial
in order to make a record and preserve points of error for appeal.” Field
& Murray, Maine Evidence § 103.7 at 28-29 (6th ed. 2007). We have applied
this principle—which triggers the more deferential standard of review
associated with unpreserved claims of error, see State v. Solomon, 2015 ME 96,
¶ 13 n.4, 120 A.3d 661—in the specific circumstance present here, where the
court makes a pretrial ruling that certain evidence may be admitted at trial but
the opposing party fails to object to the evidence when it is eventually offered
at trial, see State v. Thomes, 1997 ME 146, ¶¶ 6-7, 697 A.2d 1262; State v. Varney,
641 A.2d 185, 186-87 (Me. 1994). But we have recognized an exception to the
requirement that the opposing party voice an objection when the court
characterizes its pretrial ruling as final and unequivocal. See State v. Allen,
2006 ME 21, ¶ 9 n.3, 892 A.2d 456; see also M.R. Evid. 103(e) (“A pretrial
objection to . . . evidence must be timely renewed at trial unless the court states
8
on the record, or the context clearly demonstrates, that a ruling on the objection
. . . is final.”).
[¶14] Here, the court arguably framed its ruling announced at the
conclusion of the in limine hearing as definitive. Nonetheless, Sykes’s explicit
acquiescence to the admission of the 9-1-1 recording when it mattered most—
at trial—generates the question of whether he preserved his claim of error for
appellate review. In the end, however, we will assume, without deciding, that
Sykes preserved his objection for appeal by having articulated his opposition
to the admission of the recording at the pretrial hearing on the State’s motion
in limine, even though he ostensibly abandoned that objection at trial. See State
v. Haji-Hassan, 2018 ME 42, ¶ 14, 182 A.3d 145 (where we “assum[ed], without
deciding, that [a defendant’s] arguments and the court’s ruling at the hearing
on the State’s motion in limine served to preserve the objection”). This is
because the difference in the standards of review is not consequential here.
Even if we apply the more exacting level of scrutiny attendant to a preserved
claim of error, we conclude for the reasons discussed below that no error was
committed.
[¶15] Accordingly, “[w]e review the court's foundational findings or
implicit findings to support admissibility of evidence for clear error, and we will
9
uphold those findings unless no competent evidence supports the findings,”
State v. Taylor, 2011 ME 111, ¶ 20, 32 A.3d 440, and we review the court’s
ultimate decision to admit hearsay evidence for an abuse of discretion, State v.
Guyette, 2012 ME 9, ¶ 11, 36 A.3d 916. As to Sykes’s claim of a constitutional
deprivation, we review de novo the court’s decision to admit the evidence.
Metzger, 2010 ME 67, ¶ 13, 999 A.2d 947.
B. Excited Utterance
[¶16] Sykes first contends that the court erred by admitting the victim’s
statements in the recording of the 9-1-1 call as excited utterances.
[¶17] Maine Rule of Evidence 803(2) creates an exception to the general
rule barring the admission of hearsay and allows the admission of hearsay
statements “relating to a startling event or condition, made while the declarant
was under the stress of excitement that it caused.” As we have explained, “[t]he
trustworthiness of [such] an excited utterance rests upon the assumption that
the startling event produces a statement that is spontaneous and unreflecting
and made before there has been time to contrive and misrepresent.” State v.
Barnies, 680 A.2d 449, 451 (Me. 1996) (quotation marks omitted).
[¶18] In order to qualify as an excited utterance, the hearsay statement
must be supported by three foundational elements: “(1) a startling event
10
occurred; (2) the hearsay statement related to the startling event; and (3) the
hearsay statement was made while the declarant was under the stress of
excitement caused by that event.” Taylor, 2011 ME 111, ¶ 20, 32 A.3d 440
(quotation marks omitted). In making these three requisite findings, the court
must consider such factors as the nature of both the event and the statement;
the amount of time between the event and the statement, and whether the
declarant had the opportunity or capacity to reflect or fabricate during that
time; and the declarant’s physical and emotional condition when the statement
was made. See Metzger, 2010 ME 67, ¶ 10, 999 A.2d 947.
[¶19] Two of the three foundational elements are not at issue here.
Competent record evidence supports, and Sykes does not challenge, the trial
court’s implicit foundational finding that there had been a startling event—
specifically, a domestic assault, which can constitute a startling event for
evidentiary purposes, see State v. Kimball, 2015 ME 67, ¶¶ 8, 19-20, 117 A.3d
585; State v. Ahmed, 2006 ME 133, ¶¶ 14-15, 909 A.2d 1011.4 Further, the
victim’s statements made during the call related to that startling event.
4 At the in limine hearing, the evidence included not only the recording of the 9-1-1 call but the
testimony of the two officers who described the statements later made by the victim about the
assault. Although the court ultimately excluded evidence of the victim’s statements to the officers,
the court was nonetheless entitled to consider that evidence when determining the admissibility of
the statements made by the victim during the 9-1-1 call. See Field & Murray, Maine Evidence § 104.2
at 36-37.
11
[¶20] Instead, Sykes focuses on the remaining foundational element of
Rule 803(2) and asserts that the victim’s statements on the 9-1-1 recording
were not made while she was under the stress of the excitement caused by the
startling event because she was “not crying, not fearful,” and her statements
amounted only to a “matter of fact conversation with a 911 operator.” He also
contends that the victim had time to reflect and fabricate during the 9-1-1 call.
[¶21] In support of its conclusion that the victim’s statements to the
9-1-1 dispatcher were excited utterances, the court found that the victim
sounded “upset, her voice has tremors on occasion, [and] she is clearly
frustrated and practically dejected at the situation.” The court also
appropriately considered the victim’s immediate circumstances—“the event is
continuing, [Sykes] is in the house, she’s in the house, the children are in the
house, he is speaking with the children, refuses to go outside, [and] they are
yelling at each other . . . .” Contrary to Sykes’s contention, even though the
record does not clearly establish how much time had passed between the
assault and the victim’s 9-1-1 call that morning, competent evidence in the
record supports this foundational finding that the victim’s statements
throughout the recording were made while she was under the stress caused by
the assault, which occurred sometime earlier, and by the ongoing threat created
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by the physical proximity of the victim and her children to her assailant in their
mobile home. See Taylor, 2011 ME 111, ¶¶ 27-28, 32 A.3d 440 (holding that a
victim of domestic violence “did not have an opportunity or capacity for
reflection or fabrication” when she called 9-1-1 after making a brief phone call
to her ex-husband to come and get the children); State v. Watts, 2007 ME 153,
¶¶ 6, 9, 938 A.2d 21; cf. State v. True, 438 A.2d 460, 465-66 (Me. 1981) (holding
that a statement made two to three hours after the event was not an excited
utterance); State v. Lafrance, 589 A.2d 43, 46 (Me. 1991) (holding that a
statement made nearly a day after the event is not an excited utterance).
[¶22] Here, the court also considered the sometimes-muted tone of the
victim’s statements on the recording but nonetheless found, as we note above,
that she sounded upset as shown by her tremulous voice, the nature of her
statements, and her immediate circumstances. And Sykes himself
acknowledges that, during the call, the victim “was upset, frustrated, and
angry.” There are reasons why a victim’s tone of voice—standing alone—may
not reflect stress caused by a recent or ongoing startling event. For example,
the stressful impact of such an event may result in a “flat affect.” See In re J.V.,
2015 ME 163, ¶ 12, 129 A.3d 958. Or, if children are present—as there were
here—a victim may make a conscious effort to speak in a calm tone for their
13
benefit. Therefore, although the tone of a victim’s speech is relevant to
determining the applicability of Rule 803(2), see Metzger, 2010 ME 67, ¶ 10,
999 A.2d 947, that factor is not dispositive of the issue. Here, given the court’s
supported findings, the court did not clearly err by implicitly rejecting Sykes’s
argument that the evidence was inadmissible because the victim had the
presence of mind or the time to reflect and fabricate during the call.
C. Confrontation Clause
[¶23] Sykes also contends that even if the 9-1-1 recording was an excited
utterance and thus not inadmissible on hearsay grounds, it should have been
excluded on the independent constitutional ground that admission of the
recording, when the declarant did not testify, deprived him of his right to
confront the witness—a right guaranteed to him by the Confrontation Clause of
the Sixth Amendment to the United States Constitution and by article I,
section 6 of the Maine Constitution.5
5 The State argues on appeal that Sykes waived his confrontation right because he failed to call
the victim to testify even though he knew she was present in the courthouse. This argument is
meritless and, in fact, perverts the protections of the Confrontation Clause. It was the State that chose
to present evidence of an accuser’s out-of-court statement without calling her to testify, and that
choice did not impose on Sykes a responsibility to call a witness who may well have testified against
his interest. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009) (“Converting the
prosecution’s duty under the Confrontation Clause into the defendant’s privilege [to subpoena a
witness] shifts the consequences of adverse-witness no-shows from the State to the accused.”).
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[¶24] The federal Confrontation Clause, which applies to the states
through the Fourteenth Amendment, provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI; see Davis v. Washington, 547 U.S.
813, 821 (2006); Crawford, 541 U.S. at 42. Article I, section 6 of the Maine
Constitution provides similarly that “[i]n all criminal prosecutions, the accused
shall have a right . . . [t]o be confronted by the witnesses against the accused.”
See also State v. Rickett, 2009 ME 22, ¶ 10, 967 A.2d 671. Even if an out-of-court
statement is admissible pursuant to an exception to the hearsay rule, these
constitutional provisions bar the “admission of testimonial statements of a
witness who did not appear at trial unless he [or she] was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination,”
Crawford, 541 U.S. at 53-54 (emphasis added); see also Metzger, 2010 ME 67,
¶¶ 13-14, 999 A.2d 947. Nontestimonial statements, on the other hand, do not
trigger the protections of the Confrontation Clause. See Rickett, 2009 ME 22,
¶ 11, 967 A.2d 671.
[¶25] As we have stated, the characteristics of a nontestimonial
statement made during a 9-1-1 call are that
(1) the caller is speaking about events as they are actually
happening; (2) it would be clear to a reasonable listener that the
15
victim is facing an ongoing emergency; (3) the nature of the
questions asked and answered are objectively necessary and
elicited for the purpose of resolving the present emergency; and
(4) the victim’s demeanor on the phone and circumstances at the
time of the call evidence an ongoing emergency.
Metzger, 2010 ME 67, ¶ 16, 999 A.2d 947 (quotation marks omitted); see also
Davis, 547 U.S. at 822.
[¶26] Here, the clear purpose of the 9-1-1 dispatcher’s questions to the
victim was not investigative but rather to obtain real-time information about
the circumstances underlying the victim’s call for police assistance in order to
communicate that information to the responding officers so that they could
better assess the situation for the safety of the people at the scene and the
officers’ own safety. And the victim’s responses fall well within the nature of
nontestimonial assertions. For instance, on the recording the victim identified
Sykes as her assailant and reported that he hit her with “his closed fist”; she
confirmed that there were no weapons in the house; she described Sykes’s
location within the house and his state of mind; she identified who was in the
residence at the time and what they were doing; and she described the house
and the cars outside to help the officers find her location. This and other
information provided by the victim, and the context in which it was provided,
reveal the nontestimonial character of her statements.
16
[¶27] Sykes’s reliance on Hammon v. Indiana, which was decided in a
consolidated opinion with Davis v. Washington, 547 U.S. 813 (2006), is
misplaced. In Hammon, the victim—who did not testify at trial—made a report
of a “domestic disturbance” to a police officer who had responded to her house,
but when she made the challenged statements, “[t]here was no emergency in
progress; the interrogating officer testified that he had heard no arguments
. . . [and w]hen the officer questioned [the victim] for the second time . . . he was
not seeking to determine . . . ‘what is happening,’ but rather ‘what happened.’”
Id. at 819, 829-30. The United States Supreme Court concluded that, given
those circumstances, the victim’s statements were testimonial and therefore
inadmissible as a constitutional matter. Id. at 829-30. The Court distinguished
the circumstances presented in Hammon from those in Davis, where the Court
concluded that the statements at issue, made during a 9-1-1 call, were
nontestimonial because at the time of the call the declarant “was alone, not only
unprotected by police (as [the victim in Hammon] was protected), but
apparently in immediate danger from [the perpetrator]. She was seeking aid,
not telling a story about the past.” Id. at 831; see also Rickett, 2009 ME 22,
¶¶ 14-15, 967 A.2d 671 (holding that “the questions asked and answered were
of the type that would allow the officers who were called to investigate to assess
17
the situation, the threat to their own safety, and the possible danger to [the
victim]” and were therefore nontestimonial). That is the case here.
[¶28] Because the court did not err by concluding that the victim’s
statements were nontestimonial, the admission of the 9-1-1 call recording in
evidence did not violate Sykes’s constitutional rights.
III. CONCLUSION
[¶29] The court did not err when it determined that the victim’s
statements on the recording of the 9-1-1 call were both excited utterances and
nontestimonial, and we therefore affirm the judgment.
The entry is:
Judgment affirmed.
Jesse James Ian Archer, Esq. (orally), Sherman & Worden, P.A., Auburn, for
appellant Dwain A. Sykes
Andrew S. Robinson, District Attorney, and Patricia A. Mador, Asst. Dist. Atty.
(orally), Lewiston, for appellee State of Maine
Androscoggin County Unified Criminal Docket docket number CR-2017-3247
FOR CLERK REFERENCE ONLY