State v. Blue

• Decision Date: 29 June 2006
• Docket Number: No. 20050187.,20050187.
• Citation: 717 N.W.2d 558,2006 ND 134
• Parties: STATE of North Dakota, Plaintiff and Appellee v. James Alfred BLUE, Defendant and Appellant.
• Court: North Dakota Supreme Court

717 N.W.2d 558

2006 ND 134

STATE of North Dakota, Plaintiff and Appellee v. James Alfred BLUE, Defendant and Appellant.

No. 20050187.

Supreme Court of North Dakota.

June 29, 2006.

COPYRIGHT MATERIAL OMITTED

Kelly A. Dillon, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

Ryan D. Sandberg, Pringle & Herigstad Law Firm, Minot, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] James Blue appealed from a criminal judgment requesting review of an order granting the State's motion to use a videotaped discussion between a four-year-old and a forensic interviewer. After viewing the videotape testimony, a jury found him guilty of gross sexual imposition. Because the videotape was a testimonial statement and the child was available to testify, the playing of the videotape without the opportunity to cross-examine the witness violated Blue's constitutional right to confront his accuser in violation of the Sixth Amendment. We therefore reverse and remand.

I

[¶ 2] On December 3, 2003, a mother brought her four-year-old daughter to the Trinity Medical Center in Minot. The mother believed the child had been sexually abused by the mother's boyfriend, Blue while they were staying at Blue's uncle's house in Minot during the Thanksgiving weekend. Medical personnel confirmed irritation and indicators of penetration to the child's vagina. The Minot Police Department received a report of a possible child sexual assault. The child was referred to the Children's Advocacy Center at MedCenter One in Bismarck, North Dakota.

[¶ 3] On December 11, 2003, Samatha Gregerson, a forensic interviewer, conducted a videotaped interview with the child alone while police officer Nancy Murphy watched on a television from a different room. The child stated Blue had locked a door and put a scissors inside her. The child told the forensic interviewer that her pants and panties were off and James' pants were on. The child stated her mother was sleeping on a couch in the living room while the incident occurred. After the interview was completed, the videotape recording was given to officer Murphy.

[¶ 4] Blue was later charged with gross sexual imposition. The trial court conducted an evidentiary hearing on January 24, 2005. At the hearing, the child, now five years old, was placed on the stand to determine whether she could testify at trial. The child verbally answered some questions but also nodded her head "yes" and shook her head "no" to other questions. Following a continued evidentiary hearing on January 26, 2005, the court issued an order allowing the use of the videotape at trial. The court concluded the child was an unavailable witness due to her lack of memory.

[¶ 5] The case was tried to a jury over two days in February 2005. The videotaped interview of the child was received into evidence and shown to the jury. The child did not testify in front of the jury. The jury also received photographs of the child and a medical report following the incident. The jury convicted Blue of gross sexual imposition, and he was subsequently sentenced to ten years in prison with two years suspended. This appeal followed.

II

[¶ 6] The Confrontation Clause of the Sixth Amendment to the Constitution of the United States, applicable to the states through the Fourteenth Amendment, declares: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Our standard of review for a claimed violation of a constitutional right, including the right to confront an accuser, is de novo. State v. Messner, 1998 ND 151, ¶ 8, 583 N.W.2d 109.

A

[¶ 7] Before Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), reliability was the central focus in Confrontation Clause cases. A hearsay statement would satisfy the requirements of the Confrontation Clause if it fell within a "firmly rooted" exception to the hearsay rules or if it otherwise bore "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). But under Crawford, the federal constitutional right to confront an accuser has been redefined.

[¶ 8] Under Crawford, the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59, 124 S.Ct. 1354. Writing for the court, Justice Scalia traced the right to confrontation back to the Roman Empire. Id. at 43, 124 S.Ct. 1354. The Court looked to a period-dated dictionary to determine what the framers believed was "testimonial" when drafting the Sixth Amendment: "`Testimony,' in turn, is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Id. at 51, 124 S.Ct. 1354 (citing 1 N. Webster, An American Dictionary of the English Language (1828)). Crawford left open the exact parameters of the word "testimonial" for another day. Id. at 68, 124 S.Ct. 1354.

[¶ 9] The Supreme Court described three "formulations" of the "core class of `testimonial' statements." Id. at 51, 124 S.Ct. 1354. First, the Court described a class consisting of "ex parte in-court testimony or its functional equivalent," which includes such things as "affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. The second class of testimonial statements consists of out-of-court statements "contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Id. at 52, 124 S.Ct. 1354. The final class described by the Supreme Court is comprised of testimonial statements "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.

[¶ 10] As examples of testimonial statements, the Supreme Court pointed to "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. Specifically, in Crawford, the Supreme Court recognized a witness's tape-recorded statement made during a police interrogation was a testimonial statement. Id. at 53, 124 S.Ct. 1354. The Court stated "interrogations by law enforcement officers fall squarely within [the] class [of testimonial hearsay]." Id. Significant to this case, the Crawford Court stated: "Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse." Id. at 56 n. 7, 124 S.Ct. 1354. In the absence of police interrogation or in court testimony, defining exactly what is "testimonial" has caused other courts to struggle with a precise definition, producing, as one court described it, a "miasma of uncertainty." United States v. Brito, 427 F.3d 53, 55 (1st Cir.2005).

[¶ 11] In Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, ___ L.Ed.2d ___ (2006), the Supreme Court further explored the dichotomy between testimonial and nontestimonial statements. The Supreme Court held:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 2273-74. In Davis, the Supreme Court held a witness's statement identifying a victim's assailant to a 911 operator during an incident of domestic violence was a nontestimonial statement. Id. at 2277. In the companion case of Hammon, the Supreme Court held a victim's affidavit given during an investigation by police officers into past criminal activity at a time removed from any threat of immediate danger was a testimonial statement. Id. at 2279. The Supreme Court focused on the timing and nature of the two reports. Id. at 2276. The Davis court determined that whether an individual was acting as a witness and in essence "testifying" should be determined by looking to the surrounding circumstances of when a report is made, the nature of the report given, the level of formality when making a report, and the purpose of the report. Id. at 2276-77. The Davis court also recognized that the Confrontation Clause requires evaluation of the "declarant's statements, not the interrogator's questions." Id. at 2274 n. 1. Finally, the Court clarified that statements made in the absence of interrogation could be testimonial because the "Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation." Id.

[¶ 12] Even before Davis, the cases that interpreted Crawford noted the context and circumstances in which a statement is made is important in determining whether a statement is testimonial. For example, an out-of-court statement by a victim to a friend, family member, coworker, or non-government employee, without police involvement, have been held nontestimonial. See, e.g., People v. Griffin, 33 Cal.4th 536, 15 Cal.Rptr.3d 743, 93 P.3d 344, 372 n. 19 (2004) (victim's statement to a friend at school that defendant had been fondling her for some time and she intended to confront him was not testimonial hearsay within the meaning of Crawford); Herrera-Vega v. State, 888 So.2d 66, 69 (Fla.Dist.Ct.App.2004) (child's statements to mother and father reporting a touching were not testimonial); Demons v. State, 277 Ga. 724, 595 S.E.2d 76, 79-80 (2004) (victim's statement to coworker that the defendant had threatened to kill the victim...