State v. Forrest , 164 N.C. App. 272 ( 2004 )

WYNN, Judge,

dissenting.

As I disagree with the majority’s conclusion that the witness’ statements to law enforcement officers were nontestimonial in nature, I respectfully dissent.

Crawford holds that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at -, 158 L. Ed. 2d at 203. Where nontestimonial hearsay is at issue, however, “it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law.” Id. “Thus, under Crawford, Sixth Amendment Confrontation Clause analysis will usually turn on the question whether a particular statement is testimonial in nature or not.” Moscat, 2004 N.Y. Misc. LEXIS at 5. The first task for this Court under a proper Crawford analysis, therefore, is to determine whether or not the victim’s statement to law enforcement officers in the instant case was testimonial. See id. at 13 (stating that, “[u]nder Crawford, the relevant inquiry now is not whether the [out-of-court statement] falls into a well-rooted hearsay exception such as the ‘excited utterance.’ Rather, the relevant inquiry under Crawford is whether [the out-of-court statement] is testimonial in nature.”).

The Crawford Court expressly declined to define the term “testimonial.” See Crawford, -U.S. at-, 158 L. Ed. 2d at 203 (stating that, “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial’ ”). At a minimum, however, the term applies “to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. Regarding police interrogations, Crawford specifically notes that the term “interrogation” is used “in its colloquial, rather than any technical legal, sense.” Id. at-n.4, 158 L. Ed. 2d at 194, n.4. “Just as various definitions of ‘testimonial’ exist, one can imagine various definitions of ‘interrogation’. ...” Id. Crawford further warns that

Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. . . .

That interrogators are police officers rather than magistrates does not change the picture either. Justices of the peace conducting examinations under the Marian statutes were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function. England did not have a professional police force until the 19th century, so it is not surprising that other government officers performed the investigative functions now associated primarily with the police. The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace.

In sum, 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.

Id. at-, 158 L. Ed. 2d at 193-94 (citations omitted).

In the instant case, the witness gave a statement to law enforcement officers describing Defendant’s actions during the incident for which he was tried and convicted. Defendant had no opportunity to cross-examine the witness concerning her statements to law enforcement officers, and the witness did not appear at trial. The police officer who interviewed the witness, Detective Blalock, testified it was her “responsibility . . . first to stand by at Mary Phillips school while we waited to determine if the [area] had been secured, meaning that... the victim had been removed to safety” and then to “go to the location and get that person and interview that person.” After police officers removed Defendant from the scene and the area was secure, Detective Blalock arrived and took the witness’ statement, which was later used at trial.

The majority relies upon the reasoning set forth in Moscat in concluding that the witness’ statement to Detective Blalock was non-testimonial. In Moscat, the New York court determined that a 911 telephone call requesting emergency assistance was nontestimonial. The situation presented by a 911 call, however, is fundamentally different from the facts of the instant case. As noted by the Moscat court, a 911 call “is generated not by the desire of the prosecution or the police to seek evidence against a particular suspect; rather the 911 call has its genesis in the urgent desire of a citizen to be rescued from immediate peril.” Moscat, 2004 N.Y. Misc. LEXIS at 13.

Here, Detective Blalock’s sole purpose at the scene of the incident was to obtain the victim’s statement for use in prosecution of Defendant. The scene was secure, Defendant was absent, and the witness was no longer in any possible peril. Detective Blalock was not the first police officer encountered by the witness at the scene. The witness did not make any statements to the other police officers. Instead, she made her statement to Detective Blalock, who was the designated officer to receive it. The witness did not speak to Detective Blalock in an effort to obtain assistance; rather, she gave a statement because she knew that the police were there to gather evidence concerning the crime. As such, I strongly disagree with the majority’s statement that the witness “was not aware that she was bearing witness, and was not aware that her utterances might impact further legal proceedings.” Further, the witness’ demeanor and the length of time in which she had to reflect upon her statement are relevant only to a traditional “reliability” analysis under the “excited utterance” exception; they have absolutely no bearing upon whether or not the statement was testimonial or not.

I would hold that the witness’ statement to Detective Blalock was essentially testimonial in nature. Contrary to the majority’s statement that “Crawford protects defendants from absent witness’s statements introduced after formal police interrogations,” Crawford expressly states that the term “interrogation” can assume “various definitions” and should be read “in its colloquial, rather than any technical legal, sense.” Crawford, -U.S. at-, n.4, 158 L. Ed. 2d at 194, n.4. Further,

[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for pros-ecutorial abuse — a fact borne out time and again throughout a history with which the Framers were keenly familiar. This consideration does not evaporate when testimony happens to fall within some broad, modem hearsay exception, even if that exception might be justifiable in other circumstances.

Id. at-, n.7, 158 L. Ed. 2d at 196, n.7. Detective Blalock took the witness’ statement in an effort to gather evidence concerning the incident for which Defendant was tried and convicted. The witness waited to make her statement until Detective Blalock arrived. It strains credulity to conclude that the witness was unaware that she was bearing witness, or that her statement was one she could not “reasonably expect to be used prosecutorially.” Id. at-, 158 L. Ed. 2d at 193 (proffering as one example of a testimonial statement “pretrial statements that declarants would reasonably expect to be used prosecutorially”).

Because the trial court admitted the witness’ testimonial statement against Defendant, despite the fact that Defendant had no opportunity to cross-examine her, such admission violated Defendant’s Sixth Amendment right to confrontation. Id. at-, 158 L. Ed. 2d at 203. I therefore dissent.