State v. Williams, 042320 UTCA, 20180649-CA

Docket Nº:20180649-CA
Opinion Judge:HAGEN, JUDGE
Party Name:State of Utah, Appellee, v. Justin David Williams, Appellant.
Attorney:Wendy Brown and Kimberly A. Clark, Attorneys for Appellant Sean D. Reyes and Marian Decker, Attorneys for Appellee
Judge Panel:Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.
Case Date:April 23, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 67

State of Utah, Appellee,

v.

Justin David Williams, Appellant.

No. 20180649-CA

Court of Appeals of Utah

April 23, 2020

Third District Court, West Jordan Department The Honorable William K. Kendall No. 181400273

Wendy Brown and Kimberly A. Clark, Attorneys for Appellant

Sean D. Reyes and Marian Decker, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.

OPINION

HAGEN, JUDGE

¶1 A jury convicted Justin David Williams of aggravated burglary, criminal mischief, and assault after he broke down the door to his father's motor home, entered, and attacked his father and brother. Williams appeals his conviction, arguing that the district court erred in admitting a nine-minute 911 call his father made after the assault. We conclude that the admission of the 911 call did not violate Williams's Sixth Amendment right under the Confrontation Clause because the call was not testimonial in nature. We further conclude that the district court properly relied on the excited utterance exception to the hearsay rule in admitting the statements made by the father at the outset of the call and that Williams waived any error when he abandoned his request to redact the remainder of the recording. Accordingly, we affirm.

BACKGROUND1

¶2 On the night of January 10, 2018, Williams spotted his father's motor home parked outside a business in Midvale, Utah. He broke down the door, entered, and assaulted his father and brother. After Williams fled, the father called 911 and reported the assault.

¶3 At the outset of the call, the father's tone was distressed and his breathing labored: Q. This is 911. What is [inaudible]

A. All right. Like, 72 South State, in a motor home parked in a parking lot.

Q. In what city?

A. Uh, Magna. I mean, not -- Midvale.

Q. Okay. I'm sorry. Did you say this was a house, apartment or business?

A. No, it's -- it's a -- it's a motor home that's parked on State Street. We just got assaulted --

Q. Okay.

A. -- by my son. I mean, we're -- we're hurting man. He tore the door down. He -- he's a fucking danger. Wow, fuck.

Q. And it's the parking lot of -- of what, sorry?

A. Po Boyz Karpet. It's right across from [inaudible] State Street and 70 -- 76 [inaudible] right by Pablo's Auto.

Q. [inaudible] phone number you're calling from?

A. Uh, [redacted]. Fuck. Oh, man.

Q. [inaudible] what's your name?

A. [redacted]. Oh, man.

Q. Did you say it was -- you said it was Pablo's Auto Loan that you're in the parking lot of?

A. No, no, no. I'm in the parking lot at Po Boyz Karpet. Okay? I'm in a motor home parked in the parking lot. [inaudible] the landlord said I could stay here for a couple more days. And the motor home is parked on the side in a parking lot. We've just been assaulted. Oh, fuck.

Q. [redacted], tell me exactly what happened.

A. He just -- he broke down the door and broke in. I guess he must have seen our motor home on the side of the road. He got in the door [inaudible] tore the door right off. Fuck.

Q. Do you need medical attention?

A. Yes, I do. I got injuries. He kicked the shit out of both of us. Man [inaudible] is there somebody on their way?

Q. [inaudible] stay on the line while I update the officers.

¶4 At this point, a Unified Police dispatcher (the second dispatcher) joined the call and the first dispatcher explained the nature of the emergency. When the father spoke again, his voice had calmed. The second dispatcher asked the father a series of questions about the father's age and injuries, details of the assault, Williams's name and birthdate, Williams's physical description, the direction Williams was going when he left the scene, and whether drugs or alcohol were involved. By the end of the nearly nine-minute call, officers had arrived at the scene.

¶5 At trial, the State presented limited evidence. The State relied primarily on the 911 call to establish the course of events and the elements of the crimes charged. Neither the father nor the brother was available to testify at trial. In addition to the 911 recording, the State presented three witnesses: the second dispatcher, a dispatch records custodian, and a responding police officer. The State also presented photographs taken at the scene that showed the motor home and the father's injuries, along with the birth certificates of the father, brother, and Williams, which were used to establish their identities.

¶6 Before trial, the State filed a motion to admit the 911 phone call. Williams opposed the motion, arguing first, that it was inadmissible hearsay and second, that its admission would violate the Sixth Amendment's Confrontation Clause if the father did not testify at trial. The State responded that the statements made during the phone call were nontestimonial, and that the call's admission therefore did not violate the Confrontation Clause. Further, it argued that although the call was hearsay, it fell under the excited utterance exception found in rule 803(2) of the Utah Rules of Evidence.

¶7 Before the start of trial, the district court heard arguments on the 911 call's admissibility. The court ruled that the entirety of the call was nontestimonial because the statements were elicited for the purpose of ending an emergency situation, and therefore its admission did not violate Williams's Sixth Amendment confrontation right. The court appeared less certain, however, as to whether the entirety of the call qualified as an excited utterance. During the court's discussion of the Confrontation Clause issue, it acknowledged that there was a point in the call where the father's breathing slowed down and the type of information being relayed was not "of the nature and character of the initial information." When defense counsel argued that parts of the call should be redacted because of this, the court responded, "I think we can cross that bridge if we get there."

¶8 And the district court did eventually get there, ruling that the call was admissible as an excited utterance under rule 803(2) of the Utah Rules of Evidence. At that point, defense counsel stated, "Your Honor, the redaction portions." The court responded, asking, "[S]o you're . . . asking to stop the call, I guess, at the further questioning, in terms of the description of the son and where he went?" But defense counsel replied, "No, more [that] he's . . . dangerous when he's on drugs." The court noted that the father never made this statement during the phone call, and moved on.

¶9 At trial, the State played the entire phone call for the jury. The jury convicted Williams of aggravated burglary, a first degree felony; criminal mischief, a class B misdemeanor; and assault, a class B misdemeanor. Williams appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Williams argues that the admission of the 911 call constitutes reversible...

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