Kearney v. State

• Decision Date: 02 November 2005
• Docket Number: No. 10-04-00096-CR.,10-04-00096-CR.
• Citation: Kearney v. State, 181 S.W.3d 438 (Tex. 2005)
• Parties: Mark J. KEARNEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

181 S.W.3d 438

Mark J. KEARNEY, Appellant, v. The STATE of Texas, Appellee.

No. 10-04-00096-CR.

Court of Appeals of Texas, Waco.

November 2, 2005.

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Roy E. Greenwood, Jr., Austin, for appellant.

Bill R. Turner, Brazos County Dist. Atty., Bryan, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

Asserting four issues, Appellant Mark Kearney challenges his conviction of attempted capital murder. We will affirm.

Background

Shirley Schultz, the owner of a Bryan Western Union store, testified that while at the store on the evening of May 13, 2003, she heard gunshots in the store lobby. She saw a masked man, waving a gun and demanding money. Schultz was able to run out the back door, go to a neighboring house, and call 9-1-1 and report the armed robbery in progress.

Dean Swartzlander, a Bryan police officer, testified that he was on duty that evening when he heard a "robbery in progress" call on his radio. He was two blocks away from the Western Union store and immediately drove there. As he arrived at the store, he noticed a white vehicle driving away. A civilian pointed at the white vehicle and indicated that it was involved in the robbery. Swartzlander pursued it through a residential neighborhood until the vehicle suddenly stopped at an intersection. The driver and a backseat passenger began to get out. As Swartzlander opened his patrol car door, the backseat passenger began shooting at Swartzlander with a handgun, with one shot hitting his patrol car door. Swartzlander dropped to the ground and retreated to the back of his patrol car. From there, he fired two shots at the shooter, who was fleeing on foot.

Walt Melnyk, another Bryan police officer, arrived and joined Swartzlander in the foot pursuit. They found Kearney behind a nearby restaurant; he was lying on the ground and suffering from gunshot wounds. Kearney was arrested and taken to a local hospital, where his gunshot wounds were treated. A short time later, a detective took a recorded statement from Kearney in which he admitted that he was trying to shoot Swartzlander.

Kearney was indicted for the felony offense of attempted capital murder. A jury found him guilty, and the trial court assessed punishment at seventy-five years' imprisonment.

Issues

Kearney's first issue asserts a Confrontation Clause challenge to the 9-1-1 tape. His other three issues relate to the voluntariness of the recorded confession taken at the hospital. Kearney does not challenge the sufficiency of the evidence.

9-1-1 Tape

The dispatcher who took the call identified the tape of the 9-1-1 call, his voice, and Schultz's voice. Schultz identified her voice, the dispatcher's voice, and the voices of the neighbors (Allen and Janet Kennemore), whose house she had fled to and called 9-1-1 from. Schultz reported the ongoing robbery, including that a shot had been fired and two of her employees were still in the store. The Kennemores' mostly inaudible voices can be heard in the background. Mr. Kennemore can be heard in the background saying "he [the alleged robber] fired a shot," and Mrs. Kennemore can be heard saying "they're chasing him... he ran down that way ... the cops are chasing him ... no, they're chasing him in the car." Schultz then said that she was going back to her office and handed the phone to Mrs. Kennemore, who said that she had just seen the robber driving down the street and then that there was shooting taking place.

The tape of the 9-1-1 call was admitted over Kearney's objection that his Sixth Amendment confrontation rights were being violated because the State was not calling the Kennemores as witnesses and their statements were on the 9-1-1 tape. We review de novo the trial court's ruling that the admission of the 9-1-1 tape did not violate Kearney's Confrontation Clause rights. McClenton v. State, 167 S.W.3d 86, 93 (Tex.App.-Waco 2005, no pet. h.).

The Sixth Amendment to the United States Constitution 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. The Confrontation Clause's central concern is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial proceeding before the trier of fact. Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S.Ct. 1887, 1894 144 L.Ed.2d 117 (1999). The United States Supreme Court recently held that "testimonial statements" of witnesses absent from trial are admissible over a Sixth Amendment Confrontation Clause objection only when the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1368-69, 158 L.Ed.2d 177 (2004).

The threshold issue in our Crawford analysis is whether the statements were testimonial. Spencer v. State, 162 S.W.3d 877, 879 (Tex.App.-Houston [14th Dist.] 2005, pet. filed). The Crawford Court did not define "testimonial," but it noted three formulations of "core" testimonial evidence: (1) "ex parte in-court testimony or its functional equivalent," such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or "similar pretrial statements that declarants would reasonably expect to be used prosecutorially," (2) "extrajudicial statements" of the same nature "contained in formalized testimonial materials," and (3) "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, 124 S.Ct. at 1364. The Court further explained that the term "testimonial" applies "at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at 68, 124 S.Ct. at 1374.

Whether statements such as those made by the Kennemores in a 9-1-1 call to a dispatcher are testimonial for Confrontation Clause purposes has been addressed by apparently only one Texas court to date. See Ruth v. State, 167 S.W.3d 560, 568-70 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.). The court began its analysis by reviewing its most recent precedent to determine whether a statement is testimonial:

(1) Testimonial statements are official and formal in nature.

(2) Interaction with the police initiated by a witness or the victim is less likely to result in testimonial statements than if initiated by the police.

(3) Spontaneous statements to the police are not testimonial.

(4) Responses to preliminary questions by police at the scene of a crime while police are assessing and securing the scene are not testimonial.

Id. at 568-69 (citing Spencer, 162 S.W.3d at 881-83). Using these principles, the Ruth court determined that statements to the police — whether spontaneous or in response to preliminary questions — when police are called to a crime scene shortly after a crime, are not testimonial because such interactions are not initiated by the police and are not formal or structured. Id. at 569 (citing Spencer, 162 S.W.3d at 882-83). The court then said:

Though no Texas court has yet addressed this situation, statements made during 911 calls are similar in nature to the situation we addressed in Spencer. Such statements are not given in response to structured police questioning or with an eye to [ ] future legal proceedings but are initiated by a victim or witness to obtain police assistance. See People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, 776 (2004); People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 879-80 (Crim.Ct.2004); State v. Davis, 154 Wash.2d 291, 111 P.3d 844, 849 (2005). They usually do not bear any of the official, formal qualities of the police interactions the Confrontation Clause was intended to protect against. See Corella, 18 Cal.Rptr.3d at 776; Moscat, 777 N.Y.S.2d at 879-80; Davis, 111 P.3d at 850-51. Some courts have held that statements made during 911 calls should be analyzed on a case-by-case basis because some statements could be testimonial under certain circumstances. See People v. West, 355 Ill.App.3d 28, 291 Ill.Dec. 72, 823 N.E.2d 82, 91 (2005) (holding that 911 calls should be analyzed on a case-by-case basis to determine whether statements at issue were volunteered to obtain police action or the result of interrogation to gather evidence for use in a criminal prosecution); People v. Mackey, 5 Misc.3d 709, 785 N.Y.S.2d 870, 872 (Crim.Ct.2004) (noting that "[v]arious courts have begun to adopt a fact-specific analysis of the particular call and the caller's motive for making the call" in conducting Crawford analyses); Davis, 111 P.3d at 850 ("In most cases, one who calls 911 for emergency help is not `bearing witness,' whereas calls made to the police simply to report a crime may conceivably be considered testimonial. It is necessary to look at the circumstances of the 911 call in each case to determine whether the declarant knowingly provided the functional equivalent of testimony to a government agent."). But see People v. Cortes, 4 Misc.3d 575, 781 N.Y.S.2d 401, 415 (Sup.Ct.2004) (categorically concluding that "[c]alls to 911 to report a crime are testimonial under [Crawford]").

Id.

We agree with Ruth that it is necessary to look at the circumstances of each case to determine whether statements made in a 9-1-1 call are testimonial under Crawford. See id. In this case, Schultz's 9-1-1 call was to report a robbery in progress and to summon emergency police help. The background statements of the Kennemores and the statements made by Mrs. Kennemore after Schultz handed her the phone were only in furtherance of Schultz's non-testimonial call for help. Because the Kennemores' statements on the 9-1-1 call were not testimonial, Kearney's Sixth Amendment rights were not implicated, and the trial court did...