State v. Kimball

• Decision Date: 19 May 2015
• Docket Number: Docket No. Ken–14–269.
• Parties: STATE of Maine v. Richard J. KIMBALL.
• Court: Maine Supreme Court

117 A.3d 585

2015 ME 67

STATE of Maine

v.Richard J. KIMBALL.

Docket No. Ken–14–269.

Supreme Judicial Court of Maine.

Argued: April 9, 2015.

Decided: May 19, 2015.

Darrick X. Banda, Esq. (orally), Law Offices of Ronald W. Bourget, Augusta, for appellant Richard J. Kimball.

Maeghan Maloney, District Attorney, and Tyler LeClair, Stud. Atty. (orally), Kennebec County District Attorney's Office, Augusta, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

Opinion

ALEXANDER, J.

[¶ 1] In this appeal we address, again, issues that arise when a victim of domestic violence claims lack of memory of critical events or otherwise becomes unavailable or unwilling to testify against the accused. The State, to maintain the prosecution in such cases, often must rely on alternatives to first-person testimony to bring the victim's statements before the jury. The challenges for trial courts addressing such evidence have been enhanced in recent years by opinions of the United States Supreme Court, beginning with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that have significantly developed the standard of admissibility, under the Confrontation Clause, of out-of-court statements made by persons who do not testify at trial. This appeal focuses on how the trial court addressed out-of-court statements by a reluctant victim to permit the statements to come before the jury.

[¶ 2] Richard J. Kimball appeals from a judgment of conviction for domestic violence assault (Class D), 17–A M.R.S. § 207–A(1)(A) (2014), entered by the Superior Court (Kennebec County, Marden, J. ) following a jury trial. Kimball argues that his right to confront witnesses against him pursuant to the United States and Maine Constitutions, see U.S. Const. amend. VI ; Me. Const. art. I, § 6, was violated when the victim was unwilling to testify and the court admitted hearsay statements by the victim in the form of (1) an emergency 9–1–1 recording and (2) the victim's statements to an emergency medical technician paramedic (“EMT”). Kimball contends that the victim's statements were testimonial in nature and barred by the Crawford opinion and its progeny, even though the statements at issue may have traditionally qualified for admission as exceptions to the hearsay rule. Concluding that the victim's prior out-of-court statements were properly admitted at trial, we affirm the judgment.

I. CASE HISTORY

[¶ 3] The relevant facts, viewed in the light most favorable to the jury's verdict, are as follows. See State v. Medeiros, 2010 ME 47, ¶ 16, 997 A.2d 95. On September 15, 2013, at 6:56 p.m., the victim called 9–1–1, stating that she had been attacked by her husband, Kimball, at a home in Oakland. The victim sounded as if she was in distress, and the dispatcher requested that the victim “take a deep breath ... so [the dispatcher could] understand where [she was located].” The victim reported to the dispatcher that Kimball had beaten her “to a bloody pulp.” She told the dispatcher that she had locked Kimball outside, and that he was outside the house. She stated that she “just want[ed] somebody to look at [her] house so he doesn't come back....” The call lasted approximately two minutes.

[¶ 4] Officers from the Oakland Police Department arrived at the victim's residence approximately four minutes after she placed the 9–1–1 call. The police found Kimball sitting on the back steps of the residence, barefoot and smoking a cigarette. Kimball appeared intoxicated, and the knuckles of his index and middle finger on his right hand were observed to be red and swollen.

[¶ 5] Kimball stated to the police that the victim was inside the house “going crazy and ... beating herself up.” He stated that he had asked the victim for cash to go to the store, that he and the victim had argued, and that he had “gotten mad at [the victim] and punched the wall.” He told the police that he had left the residence to take a walk. The back door by the stairs where Kimball was sitting was locked.

[¶ 6] The police made visual contact with the victim, who motioned to one officer from inside the home and let the officer enter through the front door of the residence. The officer described the victim's demeanor as “in hysterics,” “crying very loud,” “hard to understand,” “very worked up,” and “very scared.” The officer saw that the victim's injuries included a severely bruised eye that was swollen to the point of closing, redness around her throat, bruising around her jaw, and “ping pong ball sized protrusions” on the back of her head. A photograph was taken of the victim's injuries.

[¶ 7] A captain of the Oakland Fire Department was dispatched to the residence in his capacity as an EMT paramedic to treat the victim's injuries. The EMT noticed redness around the victim's neck and could feel “a couple bumps” on the back of her head. The victim told the EMT that “she was grabbed in the head and was slammed into the floor multiple times.”

[¶ 8] Kimball was charged with one count of domestic violence assault (Class D), 17–A M.R.S. § 207–A(1)(A). He entered a plea of not guilty and requested a jury trial,¹ which was held on May 28, 2014. The victim, although under subpoena, did not appear the morning of the trial. She was eventually brought before the court under arrest to testify. Beyond acknowledging her name, the victim remained silent and would not answer questions asked by the State. The court ultimately issued a contempt order as a result of the victim's refusal to testify and jailed her for twenty-four hours.

[¶ 9] During the trial, the court admitted in evidence the content of the 9–1–1 call, over Kimball's objection on Confrontation Clause grounds. The court also allowed the EMT to testify as to his observations of the victim. On redirect examination, after defense counsel had asked if bumps on the victim's head could have other causes, the EMT was permitted to testify that, when he was treating the victim's injuries, the victim stated that “she was grabbed in the head and was slammed into the floor multiple times.”

[¶ 10] Kimball was found guilty of domestic violence assault and was sentenced to nine months in the Kennebec County jail, with all but forty-four days suspended. Kimball also was required to complete two years of probation following the sentence, including special conditions that he participate in domestic violence court and complete sixteen sessions of a Certified Batterer's Intervention program before being permitted to have contact with the victim. Kimball filed this timely appeal pursuant to 15 M.R.S. § 2115 (2014) and M.R.App. P. 2.

II. LEGAL ANALYSIS

[¶ 11] This appeal presents an issue that is not uncommon in prosecutions related to domestic violence, in which some victims refuse to testify, claim lack of memory of traumatic events, become difficult to contact, recant allegations, or express a desire not to “press” charges.²

Many factors may drive a victim's decision to distance herself or himself from these cases, including fear of retribution by a partner, fear of intimidation or physical confrontation by the perpetrator or associates, shame or concerns regarding reputation, a desire to remain in the relationship, or a concern about untrue statements in his or her initial report. The presence of children or the victim's financial dependence on the defendant may further complicate these dynamics.³

[¶ 12] Because of the challenges associated with obtaining victim testimony at trial, out-of-court statements by victims can be crucial evidence, either substantively or for impeachment purposes, in domestic violence cases. Well-established hearsay exceptions have been applied to allow admission of a victim's previous statements, including statements made while under the stress of excitement caused by a startling event, M.R. Evid. 803(2), present sense impressions, M.R. Evid. 803(1), or statements made for medical diagnosis or treatment, M.R. Evid. 803(4). See State v. Ahmed, 2006 ME 133, ¶¶ 1, 12–15, 909 A.2d 1011 (affirming a conviction of domestic violence assault when the victim's statements to a police officer were admitted as excited utterances and the content of a 9–1–1 call was admitted for impeachment purposes); State v. Whitten, 667 A.2d 849, 850–51 (Me.1995).

[¶ 13] Although the United States Supreme Court's opinions in Crawford, 541 U.S. 36, 124 S.Ct. 1354, and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), have somewhat narrowed the admissibility of such evidence when a defendant's right of confrontation is implicated, the trial court's rulings in this case did not exceed the bounds set by the Supreme Court's jurisprudence.

[¶ 14] With those general observations, we turn to the specific issues presented in this appeal. A trial court's evidentiary rulings are reviewed for clear error or an abuse of discretion. State v. Reese, 2005 ME 87, ¶ 9, 877 A.2d 1090. A court's legal conclusions that certain statements are nontestimonial, and therefore admissible over Confrontation Clause objections, are reviewed de novo. State v. Mercier, 2014 ME 28, ¶ 9, 87 A.3d 700 ; State v. Metzger, 2010 ME 67, ¶ 13, 999 A.2d 947.

[¶ 15] The Confrontation Clauses of the United States and Maine Constitutions guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him [or her].” U.S. Const. amend. VI ; see also Me. Const. art. I, § 6. The federal constitutional guarantee is applied to the states through the Fourteenth Amendment.See U.S. Const. amend. XIV, § 1 ; State v. Johnson, 2014 ME 83, ¶ 8 n. 2, 95 A.3d 621. The reach of this guarantee is limited to “testimonial” evidence, which the Supreme Court has described as “typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51, 124 S.Ct. 1354.

[¶ 16] In the context of police response to reported emergencies, the Supreme...