State v. Pugh
| Decision Date | 31 December 2009 |
| Docket Number | No. 80850-3.,80850-3. |
| Citation | 225 P.3d 892,167 Wash.2d 825 |
| Parties | STATE of Washington, Respondent, v. Timothy Earl PUGH, Petitioner. |
| Court | Washington Supreme Court |
James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondent.
Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Petitioner.
¶ 1 The defendant contends that his state and federal rights to confrontation were violated when the trial court admitted a recording of a 911 call at his trial. He argues that the state's confrontation clause, article I, section 22 of the Washington State Constitution, is more protective than the Sixth Amendment of the United States Constitution in the context of excited utterance hearsay statements. We conclude that the defendant has failed to show that the statements at issue come within the protection afforded under article I, section 22.
¶ 2 Defendant Timothy Pugh and Bridgette Pugh are married. In November 2004, Bridgette Pugh1 obtained a no-contact order preventing Pugh from contacting her. On March 21, 2005, the Pughs were together at the apartment of a friend in Des Moines. At 3:13 a.m., Bridgette called 911. She reported, "My husband was beating me up really bad." Clerk's Papers (CP) (Tr. of 911 Call) at 215. When asked if he was still there, she said, "No he's walking away." Id. at 216. She provided a description of the defendant in response to the operator's questions. Id. at 216-18. When the operator asked her whether he was still there, Mrs. Pugh said, "He's just outside." Id. at 218. She said that he did not have a vehicle and he was walking toward the street. Id. She again reported being beaten but this time stated it in the present sense, "He's beating me up (unintelligible)." Id. at 219. She said she needed an ambulance. Id. The operator asked:
Id. The operator said "no" and repeated the question whether Bridgette Pugh could see Timothy Pugh from where she was. Bridgette responded that "he's outside of the house." Id. at 220. She answered "yes" when asked if there was a restraining order in place and, when asked if Mr. Pugh had been drinking, answered "that's all he ever does." Id. The operator inquired about injuries and then again asked, "And you can no longer see him, correct?" Id. at 221. Mrs. Pugh replied, "Yes," and clarified "I can not." Id. The call terminated when police officers arrived. When the officers arrived, Bridgette Pugh had a bruised face and a chipped tooth. The officers soon arrested Mr. Pugh in the parking lot outside the apartment where Bridgette was.
¶ 3 Mr. Pugh was charged with one count of domestic violence, felony violation of a court order. He was also charged with two misdemeanor counts of violation of the protection order and witness tampering. These additional counts arose out of phone calls that Pugh made to Bridgette after he was confined in the King County Jail. The felony charge was severed from the other counts, with two separate trials resulting. The first trial involved the charges for witness tampering and misdemeanor violations of the protection order. Pugh was convicted of all of these counts.
¶ 4 At the second trial, the 911 tape was admitted as an excited utterance under ER 803(a)(2). Officer Michael Meissner, who responded to the 911 call, testified that he was dispatched at 3:15 a.m. to a domestic violence call. He arrived at 3:17 a.m. and found Mrs. Pugh obviously upset and crying. He testified she was bruised and had a chipped tooth. He took a recorded statement and photographs of Bridgette's injuries. Meissner testified that medics also arrived at the apartment and treated her. He testified that as he was leaving the building a man matching Pugh's description was coming toward him and Meissner called out "Timothy?" to which the man responded "yeah." Court Proceedings (July 28, 2005, before Honorable Theresa B. Doyle) at 31-32. Meissner immediately arrested Pugh.
¶ 5 The jury in the second trial also heard portions of the phone calls that Mr. Pugh made from the jail in which he urged Bridgette Pugh not to testify. These calls include Pugh's acknowledgments of his assault on her. Although the State had delivered a subpoena to Mrs. Pugh at her Auburn address, she did not comply with the subpoena and did not appear at trial as a witness. Pugh was convicted of felony violation of the court order, domestic violence.
¶ 6 Mr. Pugh appealed both verdicts, arguing that the witness tampering conviction was unconstitutional because he was charged with two alternative means of committing the crime but the jury was instructed as to three. The Court of Appeals reversed this conviction and it is not at issue at the present stage of the proceedings. Pugh also argued that admission of the 911 tape at his felony trial violated the confrontation clauses of the state and federal constitutions. The Court of Appeals rejected these claims and affirmed his conviction for domestic violence, felony violation of a protection order. State v. Pugh, noted at 139 Wash.App. 1079, 2007 WL 2171361.
¶ 7 Mr. Pugh contends that admission of the 911 tape violated his right to confrontation under the Sixth Amendment. He maintains that the statements made to the 911 operator were testimonial and he had no prior opportunity to cross-examine Bridgette regarding them.
¶ 8 The Sixth Amendment 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 "applies to `witnesses' against the accused-in other words, those who `bear testimony.'" Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (citation omitted). It "bars `admission of testimonial statements of a witness who did not appear at trial unless' the witness `was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'" Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (quoting Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354). Nontestimonial hearsay, on the other hand, is admissible under the Sixth Amendment subject only to the rules of evidence. Davis, 547 U.S. at 821, 126 S.Ct. 2266.
¶ 9 As the Court explained in Davis, statements made in the course of a police interrogation are nontestimonial if they were made under circumstances objectively indicating that the primary purpose of interrogating the speaker was "to enable police assistance to meet an ongoing emergency." Id. at 822, 126 S.Ct. 2266. But they are testimonial if circumstances "objectively indicate that there [wa]s no such ongoing emergency" and "the primary purpose of the interrogation [wa]s to establish or prove past events potentially relevant to later criminal prosecution." Id.
¶ 10 The Court adopted four factors that help to determine whether the primary purpose of police interrogation is to enable police assistance to meet an ongoing emergency or to establish or prove past events: (1) whether the speaker is speaking of events as they are actually occurring or instead describing past events; (2) whether a reasonable listener would recognize that the speaker is facing an ongoing emergency; (3) whether the questions and answers show that the statements were necessary to resolve the present emergency or instead to learn what had happened in the past; and (4) the level of formality of the interrogation. Id. at 827, 126 S.Ct. 2266.
¶ 11 In applying these factors in Davis, one of the two consolidated cases before it, the Court found the 911 call was nontestimonial because the victim's statements were made about events as they were actually occurring, a reasonable listener would recognize that she was facing an ongoing emergency, the call was a cry for help in the face of a physical threat, and the environment was chaotic and probably unsafe. Id. at 827-28, 126 S.Ct. 2266. The Court also explained that the statements in Davis were taken while the declarant was alone, unprotected by police, in apparent immediate danger from the defendant, and seeking aid, not relating past events. Id. at 831-32, 126 S.Ct. 2266. In contrast, in the second case before the Court, Hammon,2 the Court found that statements made to police officers after they arrived were testimonial because the purpose of the interrogation was to investigate a possible crime where there was no immediate threat and no emergency in progress, and the witness testified as to what had happened rather than what was happening. Id. at 829-30, 126 S.Ct. 2266.
¶ 12 Here, read out of context, some of Bridgette Pugh's statements appear to describe past events. For example, she said that "[m]y husband was beating me up really bad." CP at 215. She also said that he was walking toward the street and that she could not see him, indicating that she was no longer threatened by him. On the other hand, many of her statements during the call show that her overriding purpose in calling 911 was to obtain police assistance to ensure her safety and medical assistance for her injuries. Although she could not see Mr. Pugh, she expressed concerns about being beaten again if she went outside. She obviously thought he was still close by and remained a danger, and in fact he was arrested outside the apartment in the parking lot just as Officer Meissner was leaving the building.
¶ 13 A number of the 911 operator's questions and Mrs. Pugh's responses also indicate that responses were sought to resolve a present emergency, including questions about whether Pugh was armed, whether he had been drinking, and questions about his identity. The Court in Davis indicated that statements...
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