Wall v. State
| Decision Date | 18 January 2006 |
| Docket Number | No. PD-1631-04.,PD-1631-04. |
| Parties | Roger Morgan WALL, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Angela Cameron, Mary Acosta, Houston, for Appellant.
Alan Curry, Asst. District Attorney, Houston, Matthew Paul, State's Attorney, Austin, for State.
A jury convicted appellant of aggravated assault and, finding that he had two prior felony convictions, assessed his punishment at 35 years' imprisonment. On appeal, appellant argued that the trial court violated his right to confrontation when it allowed a police officer to testify about one of the assault victim's out-of court statements made during a hospital interview. The court of appeals agreed that admitting the statements under the excited-utterance exception to the hearsay rule violated the Sixth Amendment under the recently announced Crawford standard.1 The court of appeals found, however, that the error was harmless because the properly admitted evidence included testimony from three different eyewitnesses that appellant, without provocation, struck several people, including the complainant, with a board. We granted review to determine whether appellant's confrontation rights were in fact violated, and if so, whether that violation was harmful.2 We agree with the court of appeals that appellant's confrontation rights were violated, and that the violation was harmless during the guilt stage. Therefore, we affirm appellant's conviction. Because the court of appeals did not address whether the Crawford violation was harmful at the punishment stage, we remand this case to that court for further proceedings.
On December 31, 2001, a group of homeless men gathered to drink and talk at an abandoned Shell station off the feeder road of I-10 in Channelview, Texas. Appellant, who lived in a nearby apartment and who knew some of the men, joined the group. At some point during the afternoon, appellant picked up a board and beat several of the men. Two of those men, Samuel Pierce and Donald Norman, were severely injured and taken by ambulance to a nearby hospital. While in the emergency room, both were questioned by Deputy Luis Figueroa and photographed by Deputy Kirk Willis.
Appellant was charged with the aggravated assault of Samuel Pierce. At trial, Mr. Pierce testified that on New Year's Eve afternoon he was at the Shell station drinking with some people, including appellant, whom he knew only as "Roger." Then "[a] bottle got broke against the wall and things started being said." Mr. Pierce said that appellant was behind him, and the next thing he knew he was hit in the head a couple of times with a two-by-four board. When he put up his arm in self defense, appellant hit his arm. Mr. Pierce's injuries included a cut on his head that required stitches, a fractured nose, and a broken arm that required "a lot of surgeries to put it back together." Mr. Pierce said that, as far as he knew, nobody had said or done anything to appellant to provoke the beating.
Donald Norman did not testify. Instead, the State called Deputy Figueroa to relate what Mr. Norman told him in response to the deputy's questioning at the hospital. Appellant objected to this evidence, claiming that it was inadmissible hearsay and its admission violated his right to confrontation. The trial court admitted Mr. Norman's out-of-court statements under the excited-utterance exception to the hearsay rule.3
Deputy Figueroa recounted his interview of Mr. Norman:
Mr. Norman then told me that the defendant got angry and said, "You're a nigger lover," at which time he walked over to the bed of a truck and retrieved a club and came back to him and started to assault him, began assaulting him with a club.
The jury also heard testimony from two bystander eyewitnesses, Cinellia Fry (who saw the assault while stopped at a nearby red light), and Jerry Hunter (who watched the assault from a McDonald's across the street), as well as other responding deputies, none of whom testified about the racially charged conversation.
Appellant's claim on appeal was that the admission of Mr. Norman's out-of-court "testimonial" statement violated his right to confrontation under Crawford v. Washington,4 which the Supreme Court delivered during the pendency of this appeal.
In Crawford, the defendant was charged with assault; he claimed self-defense. The police interrogated both Crawford and his wife, Sylvia. Sylvia's tape-recorded statement, though generally consistent with Crawford's own statements, undermined his claim of self-defense. Sylvia did not testify at trial because her husband invoked the state marital privilege. The prosecutor then offered her tape-recorded statement to police as a statement against her penal interest. Crawford objected on Confrontation Clause grounds, but the trial court found the statement trustworthy and admissible under Ohio v. Roberts.5
After examining the historical origins of the clause, the Supreme Court repudiated its Roberts framework of "open-ended balancing tests" in favor of a "categorical" rule that requires "unavailability and a prior opportunity for cross-examination" with regard to "core testimonial statements that the Confrontation Clause plainly meant to exclude."6 The Court declined to "spell out a comprehensive definition of `testimonial,'" but it did not leave lower courts entirely without guidance, as it stated that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused."7
The Supreme Court held that the admission of a hearsay statement made by a non-testifying declarant violates the Sixth Amendment if the statement was testimonial, and the defendant lacked a prior opportunity for cross-examination.8 Thus, a "testimonial" statement is inadmissible absent a showing that the declarant is presently unavailable and the defendant had a prior opportunity for cross-examination, even if the statement "falls under a `firmly rooted hearsay exception' or bears `particularized guarantees of trustworthiness.'"9 The Court stressed that if "testimonial" evidence is at issue, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination."10
The Court identified three kinds of statements that could be regarded as testimonial:
(1) "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially";
2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; and
3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."11
The Supreme Court noted that some statements qualify as testimonial under any definition — for example, "ex parte testimony at a preliminary hearing" and "[s]tatements taken by police officers in the course of interrogations."12 The Court continued: "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class."13 In a footnote, the Court added:
We use the term "interrogation" in its colloquial, rather than any technical legal, sense. . . . Just as various definitions of "testimonial" exist, one can imagine various definitions of "interrogation," and we need not select among them in this case. Sylvia's recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition.14
The Court went on to hold that admission of Sylvia's testimonial statement against Crawford, was "sufficient to make out a violation of the Sixth Amendment" because he had no opportunity to cross-examine her.15
The Austin Court of Appeals faced facts and a claim almost identical to the ones in this case in its post-Crawford decision, Cassidy v. State.16 In Cassidy, a police officer was dispatched to a convenience store where he found emergency medical personnel treating a clerk for a stab wound to his abdomen and cuts on his hand. The officer testified about the bloody crime scene and stated that two witnesses told him...
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