State v. Shea

• Decision Date: 14 August 2008
• Docket Number: No. 07-124.,07-124.
• Citation: 965 A.2d 504,2008 VT 114
• Parties: STATE of Vermont v. Michael T. SHEA.
• Court: Vermont Supreme Court

965 A.2d 504

2008 VT 114

STATE of Vermont v. Michael T. SHEA.

No. 07-124.

Supreme Court of Vermont.

August 14, 2008.

Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Norman R. Blais, Burlington, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

DOOLEY, J.

¶ 1. Following a bench trial in Chittenden District Court, defendant was convicted of second-degree domestic assault. On appeal, defendant argues that the district court committed reversible error in admitting "testimonial" hearsay in violation of the Confrontation Clause of the Sixth Amendment. We conclude that the hearsay was not testimonial and affirm.

¶ 2. The facts of this case are undisputed on appeal. A police officer responded to a call from the dispatcher reporting that a domestic assault was "in progress" at a specific address in Burlington. The dispatcher reported that the perpetrator was no longer present at the scene. Three minutes later, the officer arrived on the scene and found a woman standing at the door, frantic, crying, bleeding from the nose and cut over her eye. The woman said that "she [had been] beat up by her boyfriend" within the last few minutes, gave the officer defendant's name, and said that he had just left the house.¹ The officer then checked the house to make sure that defendant was no longer present. After broadcasting defendant's description, the officer asked the complainant to provide further details about the assault. She responded that she and defendant had been arguing, and that defendant tried to throw her passport in the toilet. When she tried to stop him, defendant punched her several times, and slammed her head into a wall, and pulled loose a clump of hair. She stated that the blows caused her to see stars and injured her neck. The officer took the complainant to the Burlington Police Station, where her injuries were photographed and where she was asked to complete a lengthy sworn statement.

¶ 3. The complainant did not testify at the trial. During his testimony, the responding officer gave his description of the complainant's demeanor and appearance. The State then asked whether the complainant had said anything to the officer about her injuries. Defendant objected, stating that the officer's answer would be inadmissible hearsay and that its admission would violate the Confrontation Clause. The court overruled the objections and held that the statement was admissible under the excited-utterance exception to the hearsay rule. When the State asked the officer about further statements made by the complainant, defendant objected again, and the court permitted an ongoing objection to the officer's testimony concerning the complainant's statements.

¶ 4. On cross-examination, the officer testified that the complainant smelled of alcohol when he first arrived at the apartment. The officer also acknowledged that, shortly after arriving at the scene, he realized that there was no risk of harm to himself or the complainant and that the complainant did not need emergency medical care.

¶ 5. At the conclusion of the officer's testimony, defense counsel moved to strike, claiming that the hearsay testimony violated his client's Confrontation Clause rights. The court denied defendant's motion to strike, and subsequently denied defendant's motion for acquittal at the conclusion of the State's case.

¶ 6. In his direct case, defendant testified that the complainant attacked him and that her injuries occurred when he tried to defend himself. The court deferred its decision so that defendant could file a memorandum of law on the issue of testimonial hearsay in the case. On reviewing the memoranda submitted by the parties, the court issued an order denying defendant's motion to strike the first hearsay statement offered by the State and granting his motion to strike the remaining statements. In addressing the hearsay statement challenged here, the court concluded that it was not testimonial.

¶ 7. The court went on to consider whether, excluding the stricken statement, the State had met its burden of proving defendant's guilt beyond a reasonable doubt. The court stressed first that it did not find defendant's testimony credible. While acknowledging that defendant sustained some injuries, the court noted that the complainant was much smaller than defendant. The court then concluded that "[w]ithout considering the stricken statements," the State had met its burden "based on [the victim's] nontestimonial statement and the corroborating evidence provided by her physical appearance, her mental condition and her injuries." Accordingly, the court found defendant guilty of aggravated domestic assault in the second degree. This appeal followed.

¶ 8. We review the court's factual findings for clear error, and we review de novo the court's legal conclusion as to whether the hearsay was testimonial. See State v. Bauder, 2007 VT 16, ¶ 9, 181 Vt. 392, 924 A.2d 38. Defendant concedes that the statement qualifies as an excited utterance and was thus admissible under Vermont Rule of Evidence 803(2), the excited-utterance exception to the hearsay rule. The State, in turn, concedes that the complainant was unavailable to testify at trial and that defendant did not have any prior opportunity to cross-examine her. The issue, then, is whether the admitted hearsay is testimonial as defined in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (admission of testimonial hearsay violates the Confrontation Clause rights of a criminal defendant unless the declarant is available or the defendant had adequate prior opportunity to cross-examine the declarant) and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

¶ 9. In Crawford, the defendant stabbed a man who tried to rape the defendant's wife. The wife could not testify at the criminal trial because of the marital privilege, but the trial court admitted her tape-recorded statement to the police, made while she was in police custody as a suspect in the case. The United States Supreme Court held that the admission of the statement violated the Confrontation Clause, because the statement was testimonial; the witness was unavailable, and there was no prior opportunity for cross-examination. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The Court intentionally avoided a comprehensive definition of testimonial hearsay, but noted that a police interrogation is testimonial. Id.

¶ 10. In the second case, Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the trial court admitted a 911 call in which the complainant said she was being assaulted and gave the name of her assailant. At the end of the call, the complainant said that the assailant was "runnin' now" and had gone out the door, leaving in a car. Four minutes after the 911 call, the police arrived and observed the claimant's shaken state and fresh injuries on her forearm and face. The complainant did not testify, but the court admitted the 911 tape. In response to the defendant's argument that the 911 statements were testimonial, the Supreme Court held that: "[s]tatements 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." Id. at 822, 126 S.Ct. 2266. On the other hand, such statements 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.

¶ 11. The Court held that the 911 statements were not testimonial. Id. at 828, 126 S.Ct. 2266. In reaching that decision, the Court emphasized the following factors: (1) the 911 complainant was describing events as they happened, rather than past events; (2) the 911 complainant was facing an ongoing emergency; (3) the questions and answers were such "that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past"; and (4) the 911 interview was much less formal than the interview in Crawford. Id. at 827, 126 S.Ct. 2266. Thus, the Court concluded that the circumstances of the 911 interrogation "objectively indicate[d that] its primary purpose was to enable police assistance to meet an ongoing emergency." Id. at 828, 126 S.Ct. 2266.²

¶ 12. It comes as no surprise that defendant argues that Crawford governs and that admission of the statement in this case violates his Confrontation Clause rights. Nor is it surprising that the State relies on Davis and urges us to find no Confrontation Clause violation. The trial court applied Davis to the initial statement made by the complainant and concluded that the statement was nontestimonial. The court reasoned:

Although the assault was no longer ongoing when Officer Chapman arrived, [the victim] was injured and in need of protection and assistance. The assault was so recent that [the victim] was still bleeding and the officer was not even sure that the defendant was gone.... [I]nformation about the defendant's identity and description [was] necessary for protection of [the victim] and the police officers.

The circumstances here, including the recen[t] assault, [the victim's] physical injuries and emotional upset, and the fact that the defendant's whereabouts were unknown, objectively indicate that the primary purpose of the initial interrogation (prior to broadcasting the defendant's description) was to enable the police to assist and protect [the victim]. Her initial statements are not testimonial.

The court emphasized several factors in concluding that the evidence was nontestimonial, including that: (1) "[the...