State v. Davis

¶46 (dissenting) — The majority is correct that every 911 call must be evaluated on a case-by-case basis to determine whether the contents are testimonial under Crawford,.6 Majority at 295, 302. The majority is also correct that logically discrete segments of the 911 call must be analyzed separately.7 Majority at 304. However, the majority errs when it suggests — though it does not hold— that a relevant factor is the subjective intent of the absent witness to provide information to be used in an accused’s prosecution, rather than an objective evaluation of whether a reasonable person would know that his statements could be used to prosecute. The majority also errs in its evaluation of the facts of this case. Because I would hold *308that under the specific circumstances of this case all of Michelle McCottry’s statements are testimonial, I dissent.

Sanders, J.

*308¶47 Crawford defined as the “core class of ‘testimonial’ statements . . . ‘pretrial statements that declarants would reasonably expect to be used prosecutorially’. . . [and] ‘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.’ ” Crawford, 541 U.S. at 51-52 (emphasis added). The focus on reasonableness dictates an objective standard, evaluated by whether a reasonable person would “expect [the statement] to be used prosecutorially,” not a subjective determination of whether the 911 caller actually knew that his or her statement would be used prosecutorially. Yet the majority focuses on the lack of evidence that McCottry “knew” her 911 call would be used to prosecute Adrian Davis.8

¶48 The proper inquiry, as required by the United States Supreme Court’s use of the terms “objective” and “reasonably,” and as recognized by lower courts and leading commentators who have examined the issue, is whether a reasonable person in the 911 caller’s position would know that their statement “is likely to be used in investigation or prosecution of a crime.” People v. Cortes, 4 Misc. 3d 575, 594, 781 N.Y.S.2d 401, 2004 WL 1258018, at *12, 2004 N.Y.Misc. LEXIS 663, at *36 (citing Richard D. Friedman & Bridget McCormack, Dial-In Testimony, 150 U. Pa. L. Rev. 1171, 1241 (2002)).

¶49 The United States Court of Appeals for the Sixth Circuit stated:

The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.

United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).

*309¶50 Objectively, given the extensive media coverage of the use of 911 calls in the prosecution of crimes, the endless police and legal procedural dramas in which such usage plays a key role, and the nature of the questioning that occurs during the call, a reasonable person today who calls 911 in connection with a criminal act could anticipate that his or her statement would be used in investigating and prosecuting the crime.

¶51 Professor Richard Friedman, a leading expert on the confrontation clause whose framework for analyzing the clause was adopted by the United States Supreme Court in Crawford, stated in his seminal article on 911 calls and the confrontation clause: “Now consider statements made in 911 calls. . . . A reasonable person knows she is speaking to officialdom — either police officers or agents whose regular employment calls on them to pass information on to law enforcement, from whom it may go to the prosecutorial authorities.” Friedman & McCormack, supra, at 1242.

¶52 Even under the circumstances of this case it is clear that a reasonable person in McCottry’s position would have known that her 911 call would have resulted in Davis’ prosecution and that the information relayed in the call would be used in that prosecution. As the majority notes, Davis was charged with felony violation of a no-contact order under chapter 26.50 RCW. Majority at 296. Under that chapter McCottry would have had to obtain the no-contact order, would have received a copy of that order, and would have been notified at that time of the criminal penalties for violating the order. RCW 26.50.035(1)(c); see also, e.g., State v. Powers, 124 Wn. App. 92, 97, 99 P.3d 1262 (2004).

¶53 Professor Friedman’s most recent post-Crawford work sets forth the best reasoned structure for analyzing whether an absent witness’s statement is testimonial: “Whether a statement is deemed to be testimonial . .. depends on whether the statement fulfills the function of prosecution testimony. That function, in rough terms, is the transmittal of information for use in *310prosecution.” Richard D. Friedman, Grappling with the Meaning of “Testimonial,” http://www-personal.umich.edu/ [tilde]rdfrdman/Grapplingl .pdf at 2. It is clear that the 911 call in this case fulfilled the function of transmitting such information.

¶54 I agree that in some instances a 911 call that is truly only an “amplified cry for help” might not be testimonial;9 however, most 911 calls — or at least the great majority of the content of most 911 calls — will not fall into this category. Most 911 calls today are conducted according to a “script” composed and directed by agents for investigating authorities, as was the case here. These “scripts” constitute an interrogation just as effective as if a police officer were questioning the absent witness directly.10 And Crawford held that interrogations by agents of the government, such as police officers, are “testimonial under even a narrow standard.” Crawford, 541 U.S. at 52.

¶55 As the majority notes, someone at the McCottry residence called 911. State’s Ex. 2 (911 tape).11 The 911 tape does not establish that McCottry herself made the initial call. The 911 operator then called the residence back, and McCottry answered. While McCottry was upset, the majority mischaracterizes the tape when the majority describes McCottry as “hysterical and crying.” Majority at 295, 303. In fact, the first sounds heard in the call-back are not those reflected in the official transcript of the tape, but rather McCottry instructing an unknown person to “put [unintel*311ligible] down,” and a male voice responding “c’mon baby.” Ex. 2.12 It is a full 10 seconds before McCottry answers the 911 operator’s “hello.”

¶56 During that 10 seconds McCottry does not ask for help. In fact, at no time does McCottry ask for help. In response to the 911 operator’s question, McCottry stated that Davis had been “jumpin’ on me again” and had been “usin’ his fists.” Ex. 2.

¶57 This is not the amplified “call for help” that most courts and commentators have identified as potentially “nontestimonial.” McCottry’s response was no different than if she had been called by the police directly and asked by an officer what had transpired, for example if a neighbor had reported a disturbance. That interrogation would clearly have been testimonial under Crawford.

¶58 The majority focuses on the fact that the “911 call was part of an ongoing emergency situation.” Majority at 303. While this may have relevance to show that the call was potentially an “excited utterance,” that inquiry is relevant to whether the call met an exception to the evidentiary rule excluding hearsay, not whether it was testimonial.13 Certainly a witness reporting an ongoing *312crime is part of an “ongoing emergency situation.” It is nonetheless testimonial. Cortes, 4 Misc. 3d at 595.

¶59 Finally, the majority concludes that “certain statements in the call could be deemed to be testimonial to the extent they were not concerned with seeking assistance and protection from peril. However, the information essential to the prosecution of this case was McCottry’s initial identification of Davis as her assailant.” Majority at 304-05. Putting aside the fact that McCottry never “sought assistance,” the majority appears to conclude that everything after the initial identification is testimonial. And presumably the majority’s term “initial identification” is shorthand for both the identification and the statement that Davis had hit McCottry, since without the statement there was no proof that Davis assaulted McCottry. But the majority does not explain how the “initial identification,” provided in response to structured questioning by a governmental agent, is nontestimonial.

¶60 It was not a “cry for help.” It was a result of government-initiated interrogation. It was testimonial. Its admission violated the confrontation clause contained in the sixth amendment to the United States Constitution.14 Given that there was no evidence introduced at trial other than the 911 tape which showed that Davis assaulted McCottry or violated the no-contact order, the admission of the tape was not harmless.

¶61 I dissent.

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Given the majority’s holding that 911 calls must be evaluated as testimonial on a case-by-case basis and that discrete portions of 911 calls must be analyzed separately to determine if they are testimonial, the majority’s generalizations regarding 911 calls (majority at 301-02) are pure dicta.

“However, there is no evidence that McCottry had such knowledge or that it influenced her decision to call 911.” Majority at 303. “There is no evidence McCottry sought to hear witness’ in contemplation of legal proceedings.” Majority at 304.

See Richard D. Friedman, Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection, 19 Crim. Just., Summer 2004, at 4, 10. Professor Friedman actually identified the Court of Appeals opinion in the case at bar as one in which the caller “is fully aware that what she says has potential evidentiary value against the alleged assailant.” Id.

The Valley Communications Center “Standard Operating Procedures — Policy Number 602: Police Incident Interview Techniques” contained a series of questions that were followed almost exactly by the 911 questioner in this case. Those questions began with what transpired, where the incident occurred, when it occurred, who was involved, where the suspect went, and the circumstance which led to the incident. Br. of Wash. Ass’n of Criminal Def. Lawyers, App. at 1.

The majority opinion assumes the caller was McCottry. Majority at 304. But there is no indication on the 911 tape, or in the testimony of the two officers who were the only trial witnesses, that McCottry was the caller.

It is not clear that Davis is the person to whom McCottry was initially talking. During the 911 call McCottry acknowledged that, in addition to three children in the house (Report of Proceedings (RP) at 75), there was also at least one other male she had invited over (“Mike”). Ex. 2; Clerk’s Papers (CP) at 2 (Certification). There were at least five persons in the house to whom McCottry might initially have been speaking. Further, according to the Certification for Determination of Probable Cause, McCottry had been arguing with the male friend “Mike” when Davis arrived. CP at 2. “Mike” and Davis drove away together in “Mike’s” car. CP at 2. In addition, McCottry and the officers who responded to the call indicated that McCottry was in the process of moving, perhaps providing context for the instruction to put something or someone down. RP at 76. When the officers arrived, McCottry was alone in the house with the children. RP at 75. “Mike” was not identified in the police report, and was not called to testify at the trial, in spite of the fact that “Mike” presumably witnessed the events that took place.

The United States Supreme Court in Crawford explicitly disconnected these inquiries, noting that such indicia of “reliability” are “so unpredictable that it fails to provide meaningful protection from even core confrontation violations.” Crawford, 541 U.S. at 62-63. Crawford also questioned whether “spontaneous declarations” — the exception to the hearsay rule, from which the “excited utterance” doctrine was derived, see State v. Branch, 182 N.J. 338, 865 A.2d 673 *312(2005) — which were testimonial would have been admissible in 1791. Crawford, 541 U.S. at 58 n.8.

“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” U.S. Const, amend. VI. While the parties in this case contend only that introduction of the 911 tape violated the federal constitution, we should recall article I, section 22 of the Washington State Constitution (“In criminal prosecutions the accused shall have the right... to meet the witnesses against him face to face.”) differs significantly in text and deserves independent consideration when properly raised, as five justices of this court concluded in State v. Foster, 135 Wn.2d 441, 473, 481, 957 P.2d 712 (1998).