State v. Mizenko, 04-488.

• Decision Date: 11 January 2006
• Docket Number: No. 04-488.,04-488.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Gregory Michael MIZENKO, Defendant and Appellant.
• Court: Montana Supreme Court

Page 458

127 P.3d 458

2006 MT 11

STATE of Montana, Plaintiff and Respondent, v. Gregory Michael MIZENKO, Defendant and Appellant.

No. 04-488.

Supreme Court of Montana.

Heard April 15, 2005.

Submitted April 26, 2005.

Decided January 11, 2006.

For Appellant: Martin W. Judnich (argued), Missoula, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; John Paulson (argued), Special Assistant Attorney General, Helena, Montana, Stephen A. Gannon, County Attorney, Fort Benton, Montana.

For Amici Curiae: Michael Donahoe, Bozeman, Montana (Criminal Defense Trial Lawyers), Marty Lambert, Bozeman, Montana (County Attorneys Association), Christine A. Mandiloff, Helena, Montana (Montana Coalition Against Sexual and Domestic Violence).

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 The jury convicted Gregory Mizenko (Mizenko) of his third offense of Partner or Family Member Assault in violation of § 45-5-206, MCA. During trial, the District Court admitted a number of hearsay statements from the victim, Mizenko's wife, Debra. Mizenko appeals. We affirm.

¶ 2 The issue is: Were Debra's statements testimonial?¹

BACKGROUND

¶ 3 The Chouteau County Attorney filed an information charging Mizenko with Partner or Family Member Assault in violation of § 45-5-206, MCA. Dawn Grove, the Mizenkos' neighbor, testified at trial that Debra was out of breath when she appeared at the Groves' house late one afternoon. Debra had a wound on her cheek or jaw area. Grove testified that Debra asked her to call 911 as well as a friend, Carol Richard. Grove called 911 and handed the phone to Debra. Tami King answered the 911 call.

¶ 4 Although the State subpoenaed Debra, she failed to appear at trial. Grove testified that Debra "said that her husband had been drinking and was trying to hurt her." Seeking clarification of Debra's statement to her, the prosecutor asked Grove: "And you stated that he had been drinking and had hurt her?" "Yes," Grove replied.

¶ 5 Presumably relying on the excited utterance exception of Rule 803(2), M.R.Evid., the District Court overruled an objection to the following testimony from King about her conversation with Debra.

[Prosecution]: Do you recall what Mrs. Mizenko told you?

[King]: She said that Greg hit her, pushed her down and she had hair—he had pullen [sic] out her hair.

[Prosecution]: Okay. Did she request law enforcement?

[King]: Yes. She wanted him arrested, is what she said.

Without objection from Mizenko, the court also allowed the prosecution to play the audiotape of the 911 call for the jury. On the tape, Debra, breathing heavily and in a cracking and wavering voice, states, "he hit me, pulled out my hair, knocked me down. I tried so hard not to call [gasp], but umm, this is ridiculous. I can't do this anymore."

¶ 6 Officer Scott Buennemeyer testified that when he arrived at the Mizenko home, he saw a bruise on Debra's face. As he walked through the house, he saw pens and pencils and dog food on the floor of the kitchen. He saw a lock of hair near the pet bowl in the kitchen and another lock of hair on the floor in the living room. The District Court twice sustained foundational objections to Buennemeyer's testimony that the hair was Debra's. Finally, the prosecution asked Buennemeyer, "Did Debra Mizenko tell you where this hair came from?" Overruling Mizenko's hearsay objection, the District Court allowed Buennemeyer to answer. He testified, "Yes, she did. She told me it was her hair, pulled from her head, during an altercation at her residence, at that time and date."

¶ 7 After the State rested, Mizenko objected to the hearsay statements from Grove, King and Buennemeyer, arguing that they denied him his right to confrontation. The District Court ruled that Mizenko's cross-examination of the witnesses who had contact with Debra satisfied his Sixth Amendment right to confrontation. The jury found Mizenko guilty by a unanimous verdict.

STANDARD OF REVIEW

¶ 8 We will review a district court's evidentiary decision to determine whether it abused its discretion. State v. Cameron, 2005 MT 32, ¶ 14, 326 Mont. 51, ¶ 14, 106 P.3d 1189, ¶ 14. There is no discretion, however, in properly interpreting the Sixth Amendment. See Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001), 532 U.S. 424, 456-36, 121 S.Ct. 1678, 1685-86, 149 L.Ed.2d 674, 686-87 (indicating that de novo review is appropriate when applying a constitutional standard or concept, not capable of precise articulation, to the facts of a particular case); Crawford v. Washington (2004), 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177, 187 (applying de novo review to the Washington Supreme Court's application of the Sixth Amendment, albeit without expressly articulating any standard of review). We review a district court's conclusions of law and interpretations of the Constitution or the rules of evidence, de novo. State v. Villanueva, 2005 MT 192, ¶ 9, 328 Mont. 135, ¶ 9, 118 P.3d 179, ¶ 9; State v. Mathis, 2003 MT 112, ¶ 8, 315 Mont. 378, ¶ 8, 68 P.3d 756, ¶ 8; see United States v. Blue Bird (8th Cir.2004), 372 F.3d 989, 991.

DISCUSSION

I. Crawford Changes the Landscape

¶ 9 "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. Until recently, the Supreme Court had allowed courts to admit hearsay when that evidence bore "adequate `indicia of reliability.'" Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (citation omitted). Further, "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception" or if the evidence has "particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608. Thus, under Roberts, the rules of evidence subsumed any substantive restrictions the Sixth Amendment had placed on admitting hearsay.

¶ 10 In 2004 the United States Supreme Court decided Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, in which the Court dramatically bifurcated hearsay law from the Confrontation Clause. The Confrontation Clause of the Sixth Amendment allows courts to admit hearsay against criminal defendants in only two instances: (1) if the hearsay is testimonial, the defendant must have had an opportunity to cross-examine the declarant and the prosecution must show that the declarant is unavailable to appear at trial, Crawford, 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at 197; or (2) if the hearsay is nontestimonial, the hearsay must bear adequate indicia of reliability or particularized guarantees of trustworthiness. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203. In Crawford, although the Supreme Court gave numerous examples, it specifically declined to define what constitutes "testimonial" evidence. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203. Mizenko's case forces this Court to deal with the definitional void left by Crawford.

II. Testimonial vs. Nontestimonial

¶ 11 Testimony is "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Crawford, 541 U.S. at 51, 71, 124 S.Ct. at 1364, 1375, 158 L.Ed.2d at 192, 205 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)) (emphasis added). However, "[h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), M.R.Evid. Debra's statements to Grove, King, and Buennemeyer are all clearly hearsay. As Crawford recognizes, though, whether the statements are testimonial is a separate issue. Unfortunately, the facts of this case do not fit neatly within Crawford's examples of testimonial or nontestimonial.

¶ 12 Mizenko proffers that all hearsay is testimonial if it is (1) substantive and (2) accusatorial. While appealing in its clarity and ease of application, this definition is overly broad; it would require courts to exclude more evidence than the Sixth Amendment requires. Specifically, the Supreme Court has decided that, although a statement may be substantively accusatory, the Sixth Amendment would not exclude "[a]n off-hand, overheard remark," albeit accusatory, because such an off-hand remark "bears little resemblance to the civil-law abuses the Confrontation Clause targeted," Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192.

¶ 13 In the cross-examination essential to the adversarial system, the defendant tests the witness's testimony in the most rigorous, demanding, and exacting test. Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199. Through cross-examination, the defendant can delve into the witness's story and potentially reveal inherent flaws, inconsistencies, and insidious motives. Indeed, John Henry Wigmore called cross-examination the "`greatest legal engine ever invented for the discovery of truth.'" California v. Green (1970), 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (quoting 5 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 1367 (3d ed.1940)).

¶ 14 Contrary to the holding in Roberts that allowed courts to decide whether testimony has "adequate indicia of reliability" or "particularized guarantees of trustworthiness," 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608, the Sixth Amendment itself defines the indicia of reliability and guarantees of trustworthiness necessary to admit testimonial evidence. The Sixth Amendment establishes confrontation through cross-examination as the minimally adequate index of reliability and guarantee of trustworthiness. Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199. ("It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of...