Spencer v. State

• Decision Date: 28 April 2005
• Docket Number: No. 14-04-00059-CR.,14-04-00059-CR.
• Parties: Randall Bruce SPENCER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

162 S.W.3d 877

Randall Bruce SPENCER, Appellant, v. The STATE of Texas, Appellee.

No. 14-04-00059-CR.

Court of Appeals of Texas, Houston (14th Dist.).

April 28, 2005.

David Cunningham, Houston, for appellant.

Eric Kugler, Houston, for appellee.

Panel consists of Justices YATES, ANDERSON, and HUDSON.

OPINION

LESLIE BROCK YATES, Justice.

Appellant Randall Bruce Spencer appeals from his conviction for the domestic assault of Michelle O'Mealey. O'Mealey did not testify at trial, but the trial court allowed two peace officers who responded to the scene after O'Mealey called 911 to testify that O'Mealey told them appellant had hit her. Appellant contends this ruling deprived him of his right to confront witnesses against him under the Sixth and Fourteenth Amendments to the United States Constitution. Because we conclude that O'Mealey's statements to the officers were not "testimonial," we affirm.

In the early morning hours of September 5, 2003, Deputies John Igoe and Greg Thomason responded to a 911 hang-up call from a residence in Harris County. When they arrived at the scene less than three minutes later, they found O'Mealey standing in her front yard holding her nine-month old baby. She had red marks on her left cheek and blood coming from her nose and on her clothing. Her eyes were red and puffy as if she had been crying, and she was shaking and visibly distraught. She told the deputies that she was in bed with her baby when appellant came in and laid down next to her. He then jumped on top of her and the baby and started punching her in the face with his fist. She also told the deputies that appellant had been drinking earlier in the day.

After establishing that appellant was no longer on the premises, the deputies accompanied O'Mealey back into the residence, and she made a written statement. After O'Mealey refused any emergency treatment for her injuries, the deputies left. Shortly after, another 911 call came in from the same address. The deputies returned and found appellant at the scene. He was arrested and charged with assault.

As often happens in domestic violence cases, the victim, O'Mealey, did not testify at trial.¹ The State put on its case through Deputies Igoe and Thomason, who testified as to what they saw when they arrived at the scene and what O'Mealey told them before they accompanied her inside the residence and she gave a written statement. Appellant objected to admission of this evidence, arguing that it was hearsay and deprived him of his right to confront his accuser. The trial court admitted O'Mealey's initial statements to the officers under the excited utterance exception to the hearsay rule. On appeal, appellant does not challenge the trial court's determination that O'Mealey's statements were excited utterances. Rather, he contends that even if they were excited utterances, their admission violated his right of confrontation as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which was decided shortly after the case was tried.

In Crawford, the petitioner, Crawford, stabbed a man who allegedly tried to rape his wife. Id. at 38, 124 S.Ct. 1354. His wife gave a tape-recorded statement to the police describing the stabbing. Id. She did not testify at trial, based on spousal privilege. Id. at 40, 124 S.Ct. 1354. Crawford claimed self-defense, and the state sought to use his wife's statement as evidence refuting his self-defense theory. Id. Crawford objected, contending that admitting his wife's statement to the police violated his Sixth Amendment right to be "`confronted with the witnesses against him.'" Id. (quoting U.S. CONST. amend. VI).

The trial court admitted the evidence under the rule of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which allowed admission of an unavailable witness's statement against a criminal defendant if the statement bears "adequate indicia of reliability." Id. at 66, 100 S.Ct. 2531 (internal quotation marks omitted). After thoroughly analyzing the history of the Confrontation Clause and the evils it was designed to prohibit, the Court concluded that the Roberts test strays from the original meaning of the Confrontation Clause. Crawford, 541 U.S. at 42-51, 124 S.Ct. 1354. Therefore, the Court in Crawford established a new framework for analyzing a Confrontation Clause claim. If the statement at issue is "testimonial," it is inadmissible unless the declarant is unavailable and the accused has had a prior opportunity for cross-examination. Id. at 53-54, 124 S.Ct. 1354. Thus, the threshold issue under Crawford is whether the statement to be admitted is testimonial.

The 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." Id. at 51-52, 124 S.Ct. 1354. 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. 1354. The Court also declined to define "police interrogation" but did note that "interrogation" is used "in its colloquial, rather than any technical legal, sense." Id. at 53 n. 4, 124 S.Ct. 1354.

The issue we address is whether statements made by a crime victim to police on the scene responding to the victim's call for help shortly after the crime are testimonial. The only Texas case to address this issue is Key v. State, No. 12-04-00030-CR, 2005 WL 467167, ___ S.W.3d ___ (Tex.App.-Tyler Feb. 28, 2005, pet. ref'd).² In Key, a police officer arrived at a residence in response to a disturbance call and found a man and a woman sitting outside arguing. The woman told the officer the man had been restraining her all day and had pulled her to the ground and injured her when she recently tried to run from the house. At the man's assault trial, the woman did not testify, but the officer testified as to the woman's statements to him. Id. at *1, ___ S.W.3d at ___. In evaluating the man's Crawford issue, the court noted that "[t]he types of statements cited by the Crawford court as testimonial all involve a declarant's knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings." Id. at *2, ___ S.W.3d at ___. In assessing whether the woman's statements were given in response to police interrogation, the court concluded that the unstructured interaction between the officer and the woman while the officer was responding to a call and securing and assessing the scene did not amount to interrogation. Id. at *4, ___ S.W.3d at ___; see also Gonzalez v. State, 155 S.W.3d 603, 609 n. 4 (Tex.App.-San Antonio 2004, pet. filed) (commenting, but not deciding, that investigatory questioning immediately after a crime is likely not interrogation); Wilson v. State, 151 S.W.3d 694, 697-98 (Tex.App.-Fort Worth 2004, pet. ref'd) (finding that admission of non-testifying witness's self-initiated statements to police officers in response to unstructured questions during the investigation of a crime did not violate Crawford); Davis v. State, No. 2-03-305-CR, 2005 WL 183141, at *4 (Tex.App.-Fort Worth Jan. 27, 2005, pet. filed) (not designated for publication) (holding that voluntary statements to the police initiated by the witness are not interrogation and therefore are nontestimonial).

After concluding the statements were not made in response to police interrogation, the Tyler court did not end its analysis there. Because the woman's statements were admittedly excited utterances, the court concluded they were not testimonial as a matter of law because with an excited utterance, the declarant has had no time for reflection or deliberation and thus has not made the statement in contemplation of its use in a future trial. Key, ___ S.W.3d at ___-___, 2005 WL 467167, at *4-5. We disagree with the Tyler court's conclusion that all excited utterances are nontestimonial. 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." Tex.R. Evid. 803(2). The State urges us to categorically conclude, as did the Tyler court, that excited utterances are nontestimonial. This position has support in cases from other jurisdictions. Some courts have expressed skepticism as to whether an excited utterance can ever be testimonial. See, e.g., People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, 776 (2004); People v. King, No. 02CA0201, ___ P.3d ___, ___, 2005 WL 170727, at *5 (Colo.Ct.App. Jan.27, 2005); Hammon v. State, 809 N.E.2d 945, 952-53 (Ind.Ct.App.2004). Others have concluded that the characteristics that make a statement an excited utterance are inconsistent with the statement being testimonial. See, e.g., Fowler v. State, 809 N.E.2d 960, 964 (Ind.Ct.App.2004); People v. Isaac, No. 23398/02, 2004 WL 1389219, at *4 (N.Y.Dist.Ct. June 16, 2004)(unpublished disposition); State v. Anderson, No. E2004-00694-CCA-R3-CD, 2005 WL 171441, at *4 (Tenn.Crim.App. Jan. 27, 2005). All of these courts have focused on the declarant's lack of deliberation in making the excited utterance, which they conclude indicates that the declarant could not have anticipated the statement being used prosecutorially. See Corella, 18 Cal.Rptr.3d at...