State v. Reed

• Decision Date: 04 June 2012
• Docket Number: No. 66745–9–I.,66745–9–I.
• Citation: 278 P.3d 203,168 Wash.App. 553
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Cleo Palmer REED a.k.a. Cleo Reed Palmer, Appellant.

168 Wash.App. 553

278 P.3d 203

STATE of Washington, Respondent,

v.Cleo Palmer REED a.k.a. Cleo Reed Palmer, Appellant.

No. 66745–9–I.

Court of Appeals of Washington, Division 1.

June 4, 2012.

Thomas Kummerow, Oliver Davis, Washington Appellate Project, Seattle, WA, for Appellant.

Andrea Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent.

DWYER, J.

[168 Wash.App. 559]¶ 1 Statements to law enforcement officers do not implicate the Sixth Amendment's confrontation clause where those statements are made under circumstances that, objectively viewed, indicate that the primary purpose of the encounter was to enable the police to meet an ongoing emergency. Here, Cleo Reed appeals from his conviction of assault in the second degree arising from an incident in which he strangled his girlfriend, Nat Emily Ta. Reed contends that the admission of out-of-court statements uttered by Ta violated his federal right to confront the witnesses against him. However, because an objective evaluation of the circumstances demonstrates that Ta made these statements in the course of an ongoing emergency, Ta's statements are nontestimonial and, accordingly, are not subject to the requirements of the confrontation clause. Because Reed's other contentions are also without merit, we affirm his conviction.

I

¶ 2 At approximately 2:00 p.m. on June 23, 2010, Nat Emily Ta placed a 911 call. Ta told the operator that her boyfriend, Cleo Reed, was “choking” her, “scratching” her, had “punched [her] lip,” and was continuing to threaten her. Reed, who remained at the scene, could be heard shouting in the background during the call. Ta said that Reed had recently been in jail. The call disconnected before the operator could determine Ta's location.

¶ 3 Ta called 911 again at approximately 11:00 p.m. Ta told the operator that “this mother fucker he just beat me up right now.” She explained that Reed had again been “choking [her],” and that she was “bleeding on [her] nose.” She told the operator that the attack had occurred while the couple was driving with Reed's cousin. Ta stated that she was “pregnant right now” and that Reed had left her by the side of the road in an unfamiliar area of Renton. Ta struggled to convey her location to the operator. She told the operator that she needed a “cop” but did not require medical assistance.

¶ 4 The operator continued to question Ta while Ta waited in the parking lot of a McDonald's restaurant for police to arrive. Ta gave a detailed description of Reed, described Reed's use of cocaine and alcohol, and alluded to prior violent acts by Reed. She told the operator that she needed to “put his ass back in jail.”

¶ 5 Renton Police Officer Robert Bagsby was the first officer to arrive at the scene. Upon Officer Bagsby's arrival, Ta ran to his patrol car. Without prompting, Ta exclaimed that “my boyfriend beat me up, choked me, [and] wouldn't let me out of my car.” Ta was “hysterical” and “crying uncontrollably.” She was out of breath and spoke in “short, brief sentences.” After once again declining medical treatment, Ta described the incident in greater detail.

¶ 6 Seattle Police Officer John Marion thereafter assumed responsibility for the investigation. Officer Marion took photographs of Ta's injuries, which included a bleeding lip and fresh red marks and scratches on her neck, face, and hands. Officer Marion interviewed Ta, took a written statement, and then drove her home.

¶ 7 Reed was initially charged with one count of assault in the second degree. However, following Reed's arrest, he placed at least two telephone calls to Ta from jail. Reed instructed Ta to write a letter stating that she had lied to the police, and that Reed had never “hit” her, “choked” her, or “smacked” her. Reed told Ta to have the letter notarized and to make several copies. He instructed Ta to come to court and to make it clear that he was not forcing her to recant. Based upon these phone calls, Reed was also charged with one count of tampering with a witness. In addition, the State alleged the aggravating circumstance that Ta was pregnant at the time of the assault.

¶ 8 Reed was arraigned on July 15, 2010. As Reed had instructed her to do, Ta appeared at the hearing and gave a copy of the notarized letter to the prosecutor. Ta requested that Reed be released and that no no-contact order be issued. Despite the prosecutor's efforts to persuade Ta to appear as a witness at Reed's trial, Ta refused to cooperate. The prosecutor decided against requesting a material witness warrant for Ta's arrest.

¶ 9 As expected, Ta did not appear to testify at trial. However, the trial court ruled admissible portions of Ta's two 911 calls and her initial, spontaneous, statements to Officer Bagsby after determining that these statements were nontestimonial for purposes of the confrontation clause. ¹ The trial court concluded that the latter portions of Ta's second 911 call and all statements made to officers following her initial statements to Officer Bagsby were testimonial. Accordingly, these statements were not admitted at trial.

¶ 10 At the conclusion of the trial, the jury convicted Reed of assault in the second degree and witness tampering as charged, but did not find the aggravating circumstance to have been proved. The trial court imposed a standard-range sentence.

¶ 11 Reed appeals.

II

¶ 12 Reed first contends that the trial court erred by admitting into evidence statements made by Ta during the two 911 calls and to Officer Bagsby upon his arrival at the scene. We disagree.

¶ 13 The confrontation clause of the Sixth Amendment states: “In 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 bars the admission of “testimonial” hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).²

¶ 14 In Crawford, the United States Supreme Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” 541 U.S. at 68, 124 S.Ct. 1354. However, in the years following the filing of that decision, the Court has, on several occasions, more fully delineated the parameters of testimonial hearsay in the context of police interrogations. See Michigan v. Bryant, ––– U.S. ––––, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Where the police are involved in procuring an unconfronted statement, whether the statement is testimonial depends upon the “primary purpose” for the interrogation during which the statement was made. Davis, 547 U.S. at 822, 126 S.Ct. 2266. Where the interrogation is “directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator,” the product of such an interrogation is necessarily testimonial. Davis, 547 U.S. at 826, 126 S.Ct. 2266. In contrast, statements are nontestimonial when made “under circumstances objectively indicating that the primary purpose of the interrogationis to enable police assistance to meet an ongoing emergency.” Davis, 547 U.S. at 822, 126 S.Ct. 2266. Accordingly, “the existence of an ‘ongoing emergency’ at the time of an encounter between an individual and the police is among the most important circumstances informing the ‘primary purpose’ of an interrogation.” ³Bryant, 131 S.Ct. at 1157.

¶ 15 “[W]hether an emergency exists and is ongoing is a highly context-dependent inquiry.” Bryant, 131 S.Ct. at 1158. In order to ascertain the primary purpose of a police interrogation, a court must “objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.” Bryant, 131 S.Ct. at 1156. “[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.” Bryant, 131 S.Ct. at 1156.

¶ 16 Our inquiry is guided by four relevant factors. See State v. Koslowski, 166 Wash.2d 409, 418–19, 209 P.3d 479 (2009); State v. Ohlson, 162 Wash.2d 1, 11–12, 168 P.3d 1273 (2007). First, we examine the timing of the statements relative to when the described events occurred. Davis, 547 U.S. at 827, 126 S.Ct. 2266. Where a speaker has described events as they were actually occurring, such statements are indicative of an ongoing emergency. Davis, 547 U.S. at 827, 126 S.Ct. 2266. Conversely, a description of past events is less likely to demonstrate a present need for assistance. Davis, 547 U.S. at 829–30, 126 S.Ct. 2266.

¶ 17 Second, we assess the nature of what was asked and answered during the interrogation to determine whether the elicited statements were necessary to resolve a present emergency or merely to determine what happened in the past. Davis, 547 U.S. at 827, 126 S.Ct. 2266. For instance, a 911 operator's effort to establish an assailant's identity—“so that the dispatched officers might know whether they would be encountering a violent felon”—would tend to indicate that the elicited statements were nontestimonial. Davis, 547 U.S. at 827, 126 S.Ct. 2266.

¶ 18 Third, we consider the threat of harm posed by the situation as judged by a “reasonable listener.” Davis, 547 U.S. at 827, 126 S.Ct. 2266. A plain call for help “against a bona fide physical threat” strongly suggests that the speaker is facing an ongoing emergency. Davis, 547 U.S. at 827, 126 S.Ct. 2266. On the other hand, where it is clear that the threat posed by the perpetrator—to either the victim, the police, or the public—has been neutralized, such circumstances tend to indicate that no ongoing emergency exists. Bryant, 131 S.Ct. at 1158.

¶ 19 Finally, we...