LEGREE v. the STATE. ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
RAY and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 28, 2018
In the Court of Appeals of Georgia
A17A1782. LEGREE v. THE STATE.
RAY, Judge.
Following a bench trial, Ronald R. Legree was convicted on one count of
family violence battery. He appeals from his conviction, contending that the State
failed to show that the victim and the eyewitness were unavailable to testify at trial
and that the admission of their out-of-court statements violated his Sixth Amendment
right to confrontation. Legree further contends that the evidence was insufficient to
support his conviction and that he had ineffective assistance of trial counsel. For the
reasons that follow, we reverse Legree’s conviction and remand for a new trial.
On appeal from a criminal conviction following a bench trial, the defendant “is
no longer presumed innocent and all of the evidence is to be viewed in the light most
favorable to the [trial court’s] verdict.” (Citation omitted.) Batten v. State, 295 Ga.
442, 443 (1) (761 SE2d 70) (2014).
Here, the evidence shows that on May 23, 2013, the Savannah-Chatham
County police department received a 9-1-1 call from a woman identifying herself as
“Ramona Legree,” who was Legree’s wife (hereinafter “the victim”). The victim was
seeking police assistance because her husband, Legree, had just choked her. The
victim stated that she just ran outside of the house and that she was currently hiding
in the bushes because Legree was still walking around looking for her.
Approximately six minutes after the 9-1-1 call, a police officer arrived on the
scene and encountered Legree alone outside the residence. The officer spoke briefly
to Legree, then asked him to stand by while the officer went to speak with the victim,
who was now inside the residence. Upon questioning, the victim informed the officer
that she and Legree had gotten into an argument that had turned physical and that
Legree had grabbed her by the throat and forced her down onto a couch. The officer
observed what appeared to be the early onset of bruising on the victim’s collar bone,
which was consistent with being recently choked during an altercation. The officer
then questioned the minor child who was in the residence, who stated that he had
been awakened by the sound of his parents arguing and that he came out of his room
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and saw Legree on top of the victim with his hands around her throat, pushing her
into the couch. The minor child also told the officer that his brother broke up the fight
between Legree and the victim. Based on the statements that the police officer
obtained from the victim and the minor child and the visible bruising on the victim’s
collar bone, the police officer determined that Legree was the primary aggressor and
placed him under arrest.
Prior to the bench trial, the State provided Legree with notice of its intent to
introduce the 9-1-1 recording as a business record pursuant to OCGA § 24-8-803 (6)
and OCGA § 24-9-902 (11). The 9-1-1 recording was accompanied by several
documents relating to the call, including a certification from the records custodian at
the 9-1-1 communications center and a copy of the dispatch report (known as a CAD
report). After a hearing, the trial court denied Legree’s motion in limine seeking the
exclusion of such evidence, finding that the recording was admissible as a business
record and that statements made by the victim during the 9-1-1 call were non-
testimonial because they were made during an ongoing emergency for the purpose of
obtaining police assistance.
Neither the victim nor the minor child testified at the bench trial, and the State
made no showing as to why they were not available. Rather, the State argued that the
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victim and the minor child’s out-of-court statements to the police officer were non-
testimonial and, thus, were not subject to constitutional scrutiny. Further, the State
argued that the statements qualified as exceptions to the hearsay rule as present sense
impressions under OCGA § 24-8-803 (1). Ultimately, the trial court ruled that the
police officer’s testimony regarding the victim and the minor child’s out-of-court
statements was admissible. The police officer was the only witness to testify at trial.
After considering the 9-1-1 recording and the police officer’s testimony, the trial
court found Legree guilty of family violence battery, and this appeal ensued.
1. Legree first argues that his constitutional right to confront his accusers was
violated when the State failed to show that the victim and the minor child were
unavailable to testify at trial and their out-of-court statements to the police officer at
the scene were admitted into evidence over objection. We agree.
The Sixth Amendment to the United States Constitution, as well as Article I of
the Georgia Constitution, guarantees a criminal defendant the right “to be confronted
with the witnesses against him [.]” U.S. Constitution, Amend. VI; see also Ga. Const.
of 1983, Art. I, Sec. I, Para. XIV. In Crawford v. Washington, 541 U. S. 36, 68 (V)
(C) (124 SCt 1354, 158 LEd 2d 177) (2004), the United States Supreme Court held
that the admission of out-of-court statements that are testimonial in nature violates
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the Confrontation Clause unless the declarant is unavailable and the defendant had
a prior opportunity for cross-examination. Under Georgia law, a declarant is
“unavailable” as a witness when, inter alia, he or she (i) is exempted from testifying
by ruling of the trial court on the ground of privilege or (ii) is absent from the
proceedings and the proponent of the statements has been unable to procure the
declarant’s attendance by process or other reasonable means. See OCGA § 24-8-804
(a) (1), (5). Furthermore, “[a] declarant shall not be deemed unavailable as a witness
if the declarant’s . . . absence is due to the procurement or wrongdoing of the
proponent of a statement for the purpose of preventing the witness from attending or
testifying.” OCGA § 24-8-804 (a). In the instant case, there is nothing in the record
to indicate why the victim and the minor child were absent from the trial proceedings,
nor is there any showing as to what efforts were made by the State to secure their
attendance at trial so that their testimony could be subject to cross-examination.
However, when the out-of-court statements at issue are non-testimonial in
nature, the “normal rules regarding the admission of hearsay apply.” (Citation and
punctuation omitted.) Thomas v. State, 284 Ga. 540, 543-544 (2) (668 SE2d 711)
(2008). One such exception, at issue here, is that for present sense impressions under
OCGA § 24-8-803 (1), which authorizes the admissibility of “[a] statement describing
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or explaining an event or condition made while the declarant was perceiving the event
or condition or immediately thereafter[.]” Notably, non-testimonial statements that
are deemed “present sense impressions” are admissible “whether or not the declarant
is or has been available for cross-examination.” Owens v. State, 329 Ga. App. 455,
458 (1) (b) (765 SE2d 653) (2014).
Thus, our analysis of whether Legree’s constitutional rights to confrontation
were violated under Crawford, supra, turns on whether the victim and minor child’s
out-of-court statements to the police officer at the scene were “testimonial” or “non-
testimonial” in nature.
Statements 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. They 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.
(Citation omitted.) Thomas, supra at 543 (2). Accord Davis v. Washington, 547 U. S.
813, 822 (II) (126 SCt 2266, 165 LE2d 224) (2006). Our courts have interpreted
“testimonial” statements to include those statements made by witnesses to police
officers investigating a crime. For example, in Moody v. State, 277 Ga. 676, 679-680
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(4) (594 SE2d 350) (2004), the Supreme Court of Georgia held that a statement made
to a police officer during his questioning of a witness shortly after the commission
of the crime was testimonial. Similarly, in Pitts v. State, 272 Ga. App. 182, 185-187
(2) (612 SE2d 1) (2005), we held that statements the victim made to deputies after
they arrived on the scene in response to a 9-1-1 call were testimonial since there was
no longer an ongoing emergency and the statements resulted from police questioning
during the investigation of the crime.
After Moody, supra, and Pitts, supra, however, the Supreme Court of the
United States issued its decision in Michigan v. Bryant, 562 U. S. 344 (131 SCt 1143,
179 LE2d 93) (2011), which expanded the framework for analyzing whether a
witness’s out-of-court statement to law enforcement during an investigation is
testimonial or non-testimonial. This analytical framework is still one that seeks to
discern the “primary purpose” behind the witness’s out-of-court statement, but it now
requires an objective evaluation of the circumstances in which the interrogation
occurred and the statements and actions of the respective participants. Id. at 370 (IV).
“The existence of an emergency or the parties’ perception that an emergency is
ongoing is among the most important circumstances that courts must take into
account in determining whether an interrogation is testimonial[.]” Id. But there may
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be other circumstances, aside from ongoing emergencies, when an out-of-court
statement is not procured for primary purpose of establishing or proving past events
potentially relevant to a criminal prosecution. Id. at 358 (II). Where no such primary
purpose exists, standard rules regarding the admissibility of hearsay will be relevant.
Id. at 358-359 (II).
Here, when the police officer arrived on the scene in response to the 9-1-1 call,
he encountered Legree alone outside of the residence. The officer testified that he
started to get a “brief story” from Legree, but then asked Legree to stand by while he
went inside the residence to talk to the complainant (victim). Such circumstances do
not indicate that any crime was in progress at this point, or that there was an ongoing
emergency with regard to the domestic dispute. Rather, these circumstances are
indicative of the police officer’s efforts to gather information to determine if a crime
had been committed. Although the officer did not testify as to his perception of the
victim’s demeanor at the time of the questioning or the specific questions he asked
of her, his testimony indicates that the victim gave him all of the background facts
leading up to the incident, as well as the specific facts regarding the physical assault.
After observing the victim’s injuries, which were consistent with the victim’s account
of the physical assault, the officer then proceeded to obtain a statement from the
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parties’ minor child, who was an eyewitness. During the time the victim and minor
child were being questioned by the police officer, Legree remained at the residence
at the officer’s request and posed no apparent threat to anyone, and the victim and the
minor child made statements to the officer under circumstances which objectively
indicate that the primary purpose of the interrogation was to establish the facts
necessary for criminal prosecution. See Pitts, supra at 186 (2). Compare Philpot v.
State, 309 Ga. App. 196, 205 (1) (c) (709 SE2d 831) (2011) (where police officer
responded to victim’s 9-1-1 call within a few minutes and found victim to still be
“shaken up” from her confrontation with the armed burglar, and where the armed
burglar had just fled the scene and posed a serious threat to the public, victim’s
statements to the officer were non-testimonial because statements had sufficient
indicia of reliability and were primarily offered to enable police assistance to meet an
ongoing emergency). Such circumstances are not present in this case. Therefore,
under Crawford and its progeny, we are constrained to hold that the admission at trial
of the victim’s and the minor child’s statements to the police officer infringed upon
Legree’s constitutional right to confront the witnesses against him, since he had not
had a prior opportunity to cross-examine the declarants about the contents of the
hearsay statements. See Pitts, supra at 186-187 (2).
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The victim’s statements during the 9-1-1 call, however, do not come within the
ambit of Crawford. These statements were made while the incident was ongoing. In
the 9-1-1 call, the victim stated that Legree had just choked her, that she ran outside
of the house, and that she was currently hiding in the bushes because Legree was
walking around looking for her. These statements were made for the primary purpose
of preventing the continuation of the domestic violence that was apparently occurring
at that time, not for the purpose of establishing a past fact. Accordingly, we agree
with the trial court that the victim’s statements in the 9-1-1 call were non-testimonial.
See Pitts, supra at 187 (2). Furthermore, as the entirety of the 9-1-1 call took place
while the victim was perceiving the present danger posed to her by Legree, the
statements therein were admissible under the present sense impression exception to
the hearsay rule under OCGA § 24-8-803 (1). See Owens, supra at 459 (1) (b).
Although the admission of the 9-1-1 recording into evidence and the police
officer’s testimony concerning the injuries he observed on the victim at the scene was
sufficient to support Legree’s conviction, we cannot definitively say that the error in
admitting the victim and minor child’s out-of-court statements to the police officer
during his investigation of the incident was harmless. In so holding, we note that the
trial court specifically relied on the victim and the minor child’s out-of-court
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statements to the police officer in rendering its judgment of conviction. Accordingly,
we reverse Legree’s conviction and remand the case for a new trial. See Freeman v.
State, 329 Ga. App. 429, 433-438 (2) (765 SE2d 631) (2014) (erroneous admission
of hearsay statements in violation of Confrontation Clause did not raise double
jeopardy bar to retrial where evidence was otherwise sufficient).
2. Based on our holding in Division 1, we need not address Legree’s remaining
arguments.
Judgment reversed and remanded. Dillard, C. J., and Self, J., concur.
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