State v. Williams

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 111,046
STATE OF KANSAS,
Appellee,
v.
DAVID DARREL WILLIAMS,
Appellant.
SYLLABUS BY THE COURT
1.
An appellate court employs an unlimited standard of review when addressing
whether a defendant's right to confront witnesses under the Sixth Amendment to the
United States Constitution has been violated.
2.
The Confrontation Clause applies to testimonial statements and prohibits the
admission of such statements by a witness who does not appear at trial, unless the witness
is unavailable to testify and the defendant had a prior opportunity for cross-examination.
3.
Two statements of an informant during a controlled law enforcement drug buy
supporting the prosecution of the defendant in this case, recorded and played for the jury,
were testimonial. Their content reinforced evidence of the identity of the seller and the
substance purchased; it was not limited to context. The circumstances surrounding the
statements also supported their testimonial nature.
1
4.
Admission of two testimonial statements by an informant without providing the
defendant an opportunity to cross-examine the informant was error in this case, but it was
harmless.
Review of the judgment of the Court of Appeals in an unpublished opinion filed September 18,
2015. Appeal from Ellis District Court; EDWARD E. BOUKER, judge. Opinion filed April 21, 2017.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause
and Johnathan M. Grube, of the same office, was on the brief for appellant.
Amanda G. Voth, assistant solicitor general, argued the cause, and Thomas J.
Drees, county attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.
The opinion of the court was delivered by
BEIER, J.: This appeal requires this court to decide whether an audio recording of a
nontestifying informant's statements can be admitted into evidence in a criminal trial
without violating the defendant's right to confront witnesses under the Sixth Amendment
to the United States Constitution and Crawford v. Washington, 541 U.S. 36, 42, 124 S.
Ct. 1354, 158 L. Ed. 2d 177 (2004). The Court of Appeals rejected the defense argument
against admission and affirmed defendant David Darrel Williams' conviction for
distribution of methamphetamine. We accepted Williams' petition for review to address
the Confrontation Clause issue.
2
Williams also raises a challenge to his sentence, arguing that his prior convictions
could not be used to enhance his sentence without those convictions being proved to a
jury beyond a reasonable doubt, relying on Apprendi v. New Jersey, 530 U.S. 466, 477,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He concedes that we have consistently
rejected this argument, see, e.g., State v. Ivory, 273 Kan. 44, 47, 41 P.3d 781 (2002). We
do so again today, and no further discussion of this challenge is necessary.
As detailed below, we affirm the decision of the Court of Appeals and the
judgment of the district court because the error in admitting the informant's statements
was harmless.
FACTUAL AND PROCEDURAL BACKGROUND
About dusk on September 13, 2012, KBI Special Agent Michael Lind met with a
confidential informant to set up a purchase of methamphetamine from Williams. The
informant arranged a meeting with Williams during a telephone call in which Williams
gave the informant directions to his location. After the call, Lind drove with the
informant to meet Williams.
As Lind and the informant reached the meeting place, Williams walked out to the
sidewalk. Lind stopped the car, and Williams got into the back passenger seat. Williams
asked if Lind and the informant "wanted a line." At trial, Lind would testify that this
"could mean a line of methamphetamine, as a way of ingesting the drugs."
At that point, Williams asked Lind to drive to another location. Lind did so.
Williams then removed a small plastic baggie from his pocket and placed it on the center
console. Lind picked the bag up and examined it, attempting to determine whether it
3
contained drugs and, if so, in the correct quantity. Satisfied that the bag contained what
he was looking for, Lind paid Williams $120 of "Drug Enforcement Unit buy money."
Lind drove Williams back to where he had picked him up. After dropping
Williams off, Lind drove to another location and conducted a field test on the substance
in the baggie. The test confirmed that the substance was methamphetamine.
Williams would eventually be arrested and charged with distribution of
methamphetamine in violation of K.S.A. 2015 Supp. 21-5705(a)(1).
At trial, Lind testified about the details of the buy. Lind identified Williams at trial
as the person who had sold him the methamphetamine. Lind also described wearing a
"body wire" to create an audio recording of the drug deal.
Although Lind's informant had been subpoenaed to testify at trial, she did not
appear. Williams objected to the State playing the 4-minute audio recording of the deal
for the jury, arguing that the statements of the informant that could be heard on the
recording were testimonial and that playing them for the jury would violate his rights
under the Sixth Amendment Confrontation Clause. Moreover, Williams argued at the
time, the informant's statements did not satisfy any hearsay exception in Kansas statutes.
Williams specifically complained about two statements from the informant, which,
he argued, identified him and the content of the baggie. Although it is difficult to hear on
the recording included in the record on appeal, the parties seem to agree on the content of
the first statement. It occurred when Williams got into the car, and the informant
acknowledged him by saying, "'Say hi to Dave," or something similar. The second
statement, which can be heard clearly on the recording in the record on appeal, was the
4
informant's response to Williams' request about whether Lind and the informant wanted
"a line." The informant responded with one word: "meth."
The district court judge overruled the defense objection and allowed the entire
recording to be played to the jury. The judge had concluded that there was no
Confrontation Clause problem because the informant's statements did not qualify as
testimonial. The judge said that the informant "had no idea that the tape was being made.
She was not being questioned by law enforcement. She was not in the custody of law
enforcement." The judge also had concluded that the statements satisfied Kansas' hearsay
exception for vicarious admissions. See K.S.A. 2015 Supp. 60-460(i)(2) (vicarious
admissions admissible when party, declarant participating in plan to commit crime).
In addition to Lind, Harold Riddle, a forensic chemist for the KBI, and Scott
Braun, a detective with the Ellis County Sheriff's Department, testified at trial. Riddle
had tested the substance Lind purchased from Williams and had confirmed that the
substance was methamphetamine. Braun had provided security for Lind during the drug
buy by monitoring the audio through Lind's body wire. Braun testified that he had
identified Williams from hearing his voice during the drug transaction; he had previously
heard Williams' voice on multiple occasions. After recognizing Williams from his voice,
Braun requested that a photo of Williams be sent to his cell phone. After the controlled
buy had concluded, Braun showed the photo of Williams to Lind. Braun testified that
Lind confirmed Williams' identity from the photo.
A version of the first of the informant's two challenged statements was featured in
the State's closing argument, when the prosecutor argued that the State had proved the
distribution of drugs beyond a reasonable doubt:
5
"[W]e do have the evidence. We have the recording and you hear it.
"'Hi, Dave' at the beginning; 'Thanks, Dave' at the end. Talking
about other distribution of drugs, 14 grams. This was not an accident.
This was an intentional act on his part to distribute."
The jury found Williams guilty, and the district judge sentenced Williams to 49
months in prison, followed by 24 months' postrelease supervision.
Williams appealed to the Court of Appeals, arguing that application of four factors
from State v. Brown, 285 Kan. 261, 291, 173 P.3d 612 (2007), demonstrated that the
challenged informant's statements should be classified as testimonial: (1) an objective
witness in the informant's position would reasonably believe his or her statements would
later be available for use in the prosecution of a crime; (2) the statements were made in a
car with an undercover law enforcement agent, in other words, to that agent; (3) the
statements proved facts relevant to a later drug prosecution that was the primary purpose
of the encounter, when the totality of the circumstances are viewed objectively; and (4)
although the statements may have appeared to be informal to the defendant, they were, in
fact, part of a planned scenario sufficiently formal to make them inherently testimonial.
Williams also relied upon precedents from the United States Courts of Appeals for the
Sixth and Seventh Circuits that held informants' statements to be testimonial and on an
earlier Court of Appeals decision with a similar holding. See United States v. Cromer,
389 F.3d 662 (6th Cir. 2004); United States v. Silva, 380 F.3d 1018 (7th Cir. 2004); State
v. Adams, 35 Kan. App. 2d 439, 131 P.3d 556 (2006), rev'd on other grounds 283 Kan.
365, 153 P.3d 512 (2007).
For its part, the State's Court of Appeals argument on whether the informant's
challenged statements were testimonial was focused primarily on the Brown factors. It
6
did not address the Sixth and Seventh Circuit cases and attempted to distinguish the
earlier Court of Appeals decision in Adams.
The panel in this case determined that the informant's statements were not
testimonial "in nature under the circumstances presented. . . . [T]here is no evidence that
the informant knew the drug transaction was being recorded. Likewise, the informant was
not responding to questions from Agent Lind nor was she in custody at the time." State v.
Williams, No. 111,046, 2015 WL 5458672, at *3 (Kan. App. 2015) (unpublished
opinion). The panel observed that the informant apparently had not been granted
immunity from prosecution, making her a coconspirator in the drug transaction; and it
relied on this court's recognition that statements made in furtherance of a conspiracy are,
categorically, nontestimonial. 2015 WL 5458672, at *3 (citing State v. Betancourt, 301
Kan. 282, 300-01, 342 P.3d 916 [2015]).
The panel also applied the multifactor Brown test. It regarded the result on the first
factor as "unclear" because "the informant's statements were not made during a custodial
interrogation, were not made to Agent Lind, and were not made in response to Agent
Lind's questions," but "an objective person who is helping an undercover officer buy
drugs might reasonably expect that any statements made during the transaction would be
used in a later prosecution." Williams, 2015 WL 5458672, at *4. In the panel's view, the
remaining Brown factors pointed to a conclusion that the two challenged informant
statements were nontestimonial. 2015 WL 5458672, at *4.
The panel also believed the informant's statements in this case were comparable to
informant statements considered in United State v. Hendricks, 395 F.3d 173 (3d Cir.
2005), which were held to be nontestimonial. The prosecution had asserted in Hendricks
that the recorded statements were not admitted for the truth of the matter asserted. Rather,
7
they provided "context" for statements of various defendants who could also be heard on
recorded conversations about illegal drug trade. 395 F.3d at 184.
The panel did not independently assess whether the informant's statements
challenged in this case met any Kansas hearsay exception. It did hold in the alternative
that any Confrontation Clause error in admitting the informant's statements into evidence
was harmless. Williams, 2015 WL 5458672, at *6 (citing State v. Ward, 292 Kan. 541,
565, 569, 256 P.3d 801 [2011]).
In his petition for review, Williams specifically takes issue with the Court of
Appeals' observation that the informants' statements "were not made to a law
enforcement officer or to another government official," 2015 WL 5458672, at *4, arguing
that such a rationale for holding a statement nontestimonial could entirely undermine the
Confrontation Clause. Williams also singles out the panel's statement that the informant's
single word "meth" was not "offered to . . . [identify] the substance [the defendant] was
selling" for particular criticism:
"[T]he district court did not limit the use of the statements at all. It [would be] an
unusually prescient jury that would know that a statement identifying the subject of a
controlled [buy] as 'meth' couldn't be used to help prove that the subject was
methamphetamine."
Williams also attacks the panel's alternative harmless error holding by arguing
that, absent the confidential informant's recorded greeting of him, the State's evidence
could not have carried the day. Specifically, he says that the law enforcement testimony
about recognizing Williams' cell-phone photo likeness and recorded voice was not "so
overwhelming and undisputed that a jury might not have formed a reasonable doubt
regarding the identity of the person allegedly selling drugs."
8
The State did not file a written response to Williams' petition for review or a
supplemental brief after the petition was granted by this court. It did, however, submit a
letter of additional authority under Rule 6.09 (2017 Kan. S. Ct. R. 39). The letter asserted
that the district court judgment could be affirmed if it reached the right result, even if it
did so for the wrong reason, citing Rose v. Via Christi Health System, Inc., 279 Kan. 523,
525, 113 P.3d 241 (2005). Previewing the prosecutor's focus at oral argument before us,
the letter cited decisions from the Second, Fifth, Seventh, Ninth, and Eleventh Circuits
for the proposition that a nontestifying informant's or other person's statements could be
admitted in a criminal trial to provide context rather than for the truth of the matter
asserted. See United States v. Paulino, 445 F.3d 211, 216 (2d Cir. 2006); United States v.
Tolliver, 454 F.3d 660, 666 (7th Cir. 2006); United States v. Rios, 298 Fed. Appx. 312,
314 (5th Cir. 2008) (unpublished opinion); United States v. Louis, 233 Fed. Appx. 933,
935 (11th Cir. 2007) (unpublished opinion); United States v. Standley, 121 Fed. Appx.
728, 729 (9th Cir. 2005) (unpublished opinion).
DISCUSSION
An appellate court employs an unlimited standard of review when addressing
whether a defendant's right to confront witnesses under the Sixth Amendment has been
violated. State v. Johnson, 297 Kan. 210, 224, 301 P.3d 287 (2013).
The Sixth Amendment's Confrontation Clause provides: "In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him." This "bedrock procedural guarantee applies to both federal and state
prosecutions." Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004).
9
In Crawford, the United States Supreme Court held that the Confrontation Clause
applies to "testimonial" statements and prohibits the admission of such statements by a
witness "who did not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination." 541 U.S. at 54. Although
Crawford limited the Confrontation Clause's application to "testimonial" statements, it
did not provide an exhaustive definition of the term.
In State v. Brown, 285 Kan. 261, Syl. ¶ 15, 173 P.3d 612 (2007), this court
synthesized a multifactor system for courts to use when determining whether an out-of-
court statement by a nontestifying declarant is testimonial under the Confrontation
Clause. The factors were based on precedent from the United States Supreme Court and
this court then available: Crawford itself; Davis v. Washington, 547 U.S. 813, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (2006); State v. Miller, 284 Kan. 682, 163 P.3d 267 (2007); and
State v. Henderson, 284 Kan. 267, 160 P.3d 776 (2007). The factors are:
"(1) Would an objective witness reasonably believe such a statement would later
be available for use in the prosecution of a crime?
"(2) Was the statement made to a law enforcement officer or to another
government official?
"(3) Was proof of facts potentially relevant to a later prosecution of a crime the
primary purpose of the interview when viewed from an objective totality of the
circumstances, including circumstances of whether
(a) the declarant was speaking about events as they were actually
happening, instead of describing past events;
(b) the statement was made while the declarant was in immediate
danger, i.e., during an ongoing emergency;
10
(c) the statement was made in order to resolve an emergency or simply
to learn what had happened in the past; and
(d) the interview was part of a governmental investigation; and
"(4) Was the level of formality of the statement sufficient to make it inherently
testimonial; e.g., was the statement made in response to questions, was the statement
recorded, was the declarant removed from third parties, or was the interview conducted in
a formal setting such as in a governmental building?" Brown, 285 Kan. at 291.
The United States Supreme Court has not yet directly addressed statements made
by informants under Crawford. But we review its decisions in this area for the guidance
they can provide on the federal constitutional question before us today.
In Crawford, in addition to laying out the Confrontation Clause analysis in broad
strokes, the Supreme Court provided historical context for the types of abuses the Clause
was meant to eliminate.
Although the right to confront one's accuser is a concept dating to Roman times,
the founding generation's source of the concept was the English common law. Crawford,
541 U.S. at 43. "The common-law tradition is one of live testimony in court subject to
adversarial testing, while the civil law condones examination in private by judicial
officers." 541 U.S. at 43. But at times England adopted civil-law elements, such as
allowing a justice of the peace to examine suspects and witnesses before trial and then
reading of the examination in court in lieu of live testimony. 541 U.S. at 43. The practice
"'occasioned frequent demands by the prisoner to have his "accusers," i.e., the witnesses
against him, brought before him face to face.'" 541 U.S. at 43.
11
One of the "most notorious" instances of the substitute practice was the 1603 trial
of Sir Walter Raleigh for treason. 541 U.S. at 44. Raleigh's alleged accomplice implicated
him in the accomplice's examination before the Privy Council and in a letter. 541 U.S. at
44. These were read to the jury at Raleigh's trial. 541 U.S. at 44. Raleigh argued that his
accuser had named him in hopes of saving himself. Raleigh demanded that his accuser,
Lord Cobham, be ordered to appear. "The Proof of the Common Law is by witness and
jury: let Cobham be here, let him speak it. Call my accuser before my face . . . .'" 541
U.S. at 44 (quoting Raleigh's Case, 2 How. St. Tr. 1, 15-16 [1603]). Raleigh's demand
was refused, and he was convicted by a jury and sentenced to death. Crawford, 541 U.S.
at 44. One of the trial judges "later lamented that '"the justice of England has never been
so degraded and injured as by the condemnation of Sir Walter Raleigh."'" 541 U.S. at 44(quoting 1 D. Jardine, Criminal Trials 520 [1832]). Through statutory and judicial reform,
English law developed a right of confrontation to limit such practices. Crawford, 541
U.S. at 44.
The Crawford Court also acknowledged controversial examination processes used
in the American colonies, such as the one that prompted the Virginia Council to protest
the Governor for having "'privately issued several commissions to examine witnesses
against particular men ex parte.'" 541 U.S. at 47 (quoting A Memorial Concerning the
Maladministrations of His Excellency Francis Nicholson, reprinted in 9 English
Historical Documents 253, 257 [D. Douglas ed. 1955]). The Council "complain[ed] that
'the person accused is not admitted to be confronted with, or defend himself against his
defamers.'" Crawford, 541 U.S. at 47. As a result of such events, many declarations of
rights adopted about the time of the Revolution guaranteed a right of confrontation. 541
U.S. at 47; see, e.g., Virginia Declaration of Rights § 8 (1776). But the proposed federal
Constitution did not contain such a provision. Many objected to this omission, in some
cases comparing Congressional power to "'institute judicatories little less inauspicious
than a certain tribunal in Spain, . . . the Inquisition.'" 541 U.S. at 48-49 (quoting 2
12
Debates on the Federal Constitution 110-111 [J. Elliot 2d ed. 1863]). As a result of these
criticisms, the First Congress included the Confrontation Clause in its proposal that
became the Sixth Amendment. 541 U.S. at 49.
Based on this history, the Supreme Court concluded 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." 541 U.S. at 50. The Court rejected the view "that the Confrontation Clause
applies of its own force only to in-court testimony, and that its application to out-of-court
statements introduced at trial depends upon 'the law of Evidence for the time being.'" 541
U.S. at 50-51. "Leaving the regulation of out-of-court statements to the law of evidence
would render the Confrontation Clause powerless to prevent even the most flagrant
inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read
Cobham's confession in court." 541 U.S. at 51.
Yet the Court acknowledged that not all hearsay implicates the Confrontation
Clause: "An off-hand, overheard remark might be unreliable evidence and thus a good
candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law
abuses the Confrontation Clause targeted." 541 U.S. at 51. On the other hand, some ex
parte examinations may be admissible under evidentiary hearsay rules, "but the Framers
certainly would not have condoned them." 541 U.S. at 51.
Before Crawford, the Court's Confrontation Clause jurisprudence had focused on
the reliability of statements. But the Crawford Court rejected this approach. The Framers
did not intend to leave the Sixth Amendment's protection "to the vagaries of the rules of
evidence, much less to amorphous notions of 'reliability.'" 541 U.S. at 61. "To be sure,
the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather
than a substantive guarantee." 541 U.S. at 61. It demands, "not that evidence be reliable,
13
but that reliability be assessed in a particular manner: by testing in the crucible of cross-
examination." 541 U.S. at 61. The Court noted that in Raleigh's paradigmatic case, the
prosecution responded to Raleigh's demand to confront his accuser "with many of the
arguments a court applying [pre-Crawford precedent] might invoke today: that Cobham's
statements were self-inculpatory, . . . that they were not made in the heat of passion, . . .
and that they were not 'extracted from [him] upon any hopes or promise of Pardon.'" 541
U.S. at 62. "Dispensing with confrontation because testimony is obviously reliable is akin
to dispensing with jury trial because a defendant is obviously guilty. This is not what the
Sixth Amendment prescribes." 541 U.S. at 62.
The Court did not define all possible testimonial statements but did state that
"[w]hatever else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations." 541 U.S. at 68.
On the facts of Crawford, the Court held that the challenged statements were
testimonial and should have been excluded because the defendant had not had an
opportunity to cross-examine the witness. 541 U.S. at 68. The defendant had stabbed a
man who allegedly tried to rape his wife and then claimed self-defense. The defendant's
wife, who had seen the stabbing, had been questioned by police about what happened.
The wife did not testify at trial because of the state's marital privilege, but the privilege
did not extend to out-of-court statements, and the wife's tape-recorded statement to police
detectives was played for the jury. The Court concluded that "[s]tatements taken by
police officers in the course of interrogations are also testimonial under even a narrow
standard." 541 U.S. at 52. The absence of an oath was not dispositive. 541 U.S. at 52.
14
In Davis v. Washington, and its companion case Hammon v. Indiana, 547 U.S.
813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the Court further defined the contours of
testimonial statements. Both cases involved a domestic disturbance.
In Davis, defendant Adrian Davis challenged the introduction of statements made
by Michelle McCottry to a 911 operator. During a 911 call, through responses to the 911
operator's questions, McCottry described a domestic assault as it happened. McCottry
was able to answer questions about her residence, whether there were any weapons, and
whether her assailant had been drinking. She also provided the operator with the
assailant's name and birthdate. Within 4 minutes of the 911 call, police offers arrived and
"observed McCottry's shaken state, the 'fresh injuries to her forearm and her face,' and her
'frantic efforts to gather her belongings and her children so that they could leave the
residence.'" 547 U.S. at 818.
In Hammon, police officers responded to a reported domestic disturbance at the
home of Hershel and Amy Hammon. Eventually one officer spoke to Hershel in the
kitchen while another spoke to Amy in the living room. After hearing Amy's account, an
officer had her fill out and sign a battery affidavit. In the affidavit, Amy wrote: "'Broke
our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest
and threw me down. Broke our lamps & phone. Tore up my van where I couldn't leave
the house. Attacked my daughter.'" 547 U.S. at 820.
In its analysis, the Court again declined to provide an exhaustive definition or
description of all testimonial statements, but it did outline what has become known as the
"primary purpose" test:
"Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
15
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." 547 U.S. at 822.
In a footnote, the Court noted that, although it had framed the test in terms of an
"interrogation," that selection of the frame was attributable to the facts of the two cases
and was not intended to imply that that statements made in the absence of interrogation
are necessarily nontestimonial. 547 U.S. at 822 n.1 (noting also: part of evidence against
Raleigh—a letter from Cobham—"plainly not the result of sustained questioning").
With specific respect to Davis, the Court framed the question as "whether,
objectively considered, the interrogation that took place in the course of the 911 call
produced testimonial statements." 547 U.S. at 826. In Crawford, when the Court said
interrogations by law enforcement fell within the class of testimonial hearsay, it had in
mind "interrogations solely directed at establishing the facts of a past crime, in order to
identify (or provide evidence to convict) the perpetrator." Davis, 547 U.S. at 826. In
contrast, "the initial interrogation conducted in . . . a 911 call, is ordinarily not designed
primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances
requiring police assistance." 547 U.S. at 827. In Davis, the declarant was narrating events
as they happened, and any reasonable listener could recognize that McCottry was facing
an ongoing emergency. 547 U.S. at 827. The Court also examined the nature of the
questions that had been asked and determined that, when viewed objectively, the elicited
statements were necessary to resolve the current emergency rather than simply to
describe what had happened in the past. 547 U.S. at 827. "That is true even of the
operator's effort to establish the identity of the assailant, so that the dispatched officers
might know whether they would be encountering a violent felon." 547 U.S. at 827. In
addition, the Court acknowledged that the interview in Davis was much less formal than
the interrogation that had occurred in Crawford. "She simply was not acting as a witness;
16
she was not testifying." 547 U.S. at 827-28. McCottry's statement was not "'a weaker
substitute for live testimony' at trial," unlike the statements in Raleigh's Case or
Crawford in which the ex parte communications "aligned perfectly with their courtroom
analogues"; "[n]o 'witness' goes into court to proclaim an emergency and seek help." 547
U.S. at 828.
The statements in Hammon were much easier for the Supreme Court to classify, as
they were not much different from the statements held to be testimonial in Crawford. "It
is entirely clear from the circumstances that the interrogation was part of an investigation
into possibly criminal past conduct—as, indeed, the testifying officer expressly
acknowledged." 547 U.S. at 829. There was no ongoing emergency to respond to at the
time the officers arrived. The challenged statements were not made in responses to
questions of "'what is happening,' but rather 'what happened.'" 547 U.S. at 830. The
primary, if not sole, purpose of the interrogation was to investigate a crime. 547 U.S. at
830. "Such statements under official interrogation are an obvious substitute for live
testimony, because they do precisely what a witness does on direct examination; they are
inherently testimonial." 547 U.S. at 830.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d
314 (2009), the Court addressed whether the admission of laboratory results, which had
demonstrated that a substance seized by police was cocaine, implicated the Confrontation
Clause. The evidence consisted of three certificates of analysis that had been performed.
"The certificates were sworn to before a notary public by analysts at the State Laboratory
Institute of the Massachusetts Department of Public Health, as required under
Massachusetts law." 557 U.S. at 308. Defendant Luis Melendez-Diaz objected under
Crawford to the admission of the certificates, arguing that the analysts who tested the
substance must testify in person.
17
At the outset of its analysis, the Court reiterated the basic description of
testimonial statements from Crawford and concluded that there was "little doubt that the
documents at issue in this case fall within the 'core class of testimonial statements.'"
Melendez-Diaz, 557 U.S. at 310. The documents qualified "incontrovertibly" as '"solemn
declaration[s] or affirmation[s] made for the purpose of establishing or proving some
fact."'" 557 U.S. at 310. Moreover, "not only were the affidavits '"made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial,"' but also 'under Massachusetts law
the sole purpose of the affidavits was to provide "prima facie evidence of the
composition, quality, and the net weight" of the analyzed substance.'" 557 U.S. at 311.
Under Crawford, the certificates were testimonial statements, and the analysts were
"witnesses" for purposes of the Sixth Amendment, requiring a showing that the analysts
were unavailable to testify at trial and that the defendant had had a prior opportunity to
cross-examine them. Melendez-Diaz, 557 U.S. at 311.
After reaching its holding, the Court addressed various arguments raised by the
parties and the dissent. Of particular note was the argument that the analysts were not
subject to confrontation because they were not "accusatory" witnesses and their testimony
was inculpatory "only when taken together with other evidence linking [the defendant] to
the contraband." 557 U.S. at 313. The Court rejected this contextual argument,
contrasting the language of the Confrontation Clause with that of the Compulsory Process
Clause, which guarantees a defendant the right to call witnesses "'in his favor.'" 557 U.S.
at 313. The Sixth Amendment "contemplates two classes of witnesses—those against the
defendant and those in his favor. The prosecution must produce the former; the defendant
may call the latter." 557 U.S. at 313-14. "[T]here is not a third category of witnesses,
helpful to the prosecution, but somehow immune from confrontation." 557 U.S. at 314.
18
The Court also rejected arguments that "the analysts should not be subject to
confrontation because they are not 'conventional' (or 'typical' or 'ordinary') witnesses of
the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter
Raleigh." 557 U.S. at 315. Although Crawford had recognized the ex parte examination
used at Raleigh's trial as having "'long been thought a paradigmatic confrontation
violation,'" "the paradigmatic case identifies the core of the right to confrontation, not its
limits." Melendez-Diaz, 557 U.S. at 315.
Addressing another argument, the Court rejected the notion that the analysts need
not be subjected to confrontation because the testimony at issue is "neutral, scientific
testing," rather than "testimony recounting historical events, which is 'prone to distortion
or manipulation.'" 557 U.S. at 317. It is not evident that "'neutral scientific testing' is as
neutral or reliable" as suggested. 557 U.S. at 318. "Forensic evidence is not uniquely
immune from the risk of manipulation." 557 U.S. at 318. "Confrontation is one means of
ensuring accurate forensic analysis." 557 U.S. at 318. Although "an honest analyst will
not alter his testimony when forced to confront the defendant, . . . the same cannot be said
of the fraudulent analyst." 557 U.S. at 319. Moreover, "[c]onfrontation is designed to
weed out not only the fraudulent analyst, but the incompetent one as well." 557 U.S. at
319.
Finally, the Court rejected the argument that the certificates should be admissible
without confrontation because they were akin to official business records. Although
documents kept in the regular course of business may be admitted despite their hearsay
status, it is not the case "if the regularly conducted business activity is the production of
evidence for use at trial." 557 U.S. at 321. "The analysts' certificates—like police reports
generated by law enforcement officials—do not qualify as business or public records for
precisely the same reason." 557 U.S. at 321-22.
19
In Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610(2011), the Court addressed whether the person testifying to the results of laboratory
testing must be the person who conducted the test as opposed to someone otherwise
familiar with procedures or the documentation. Defendant Donald Bullcoming was
charged with driving while intoxicated. The principal evidence against him was a
forensic laboratory report based on showing the blood-alcohol concentration in his blood
sample to be well above the threshold necessary to be convicted. At trial, the State called
as a witness an analyst who was familiar with the laboratory's testing procedures but who
was not the person who had participated in or observed the testing of Bullcoming's
particular blood sample. The Court held that the testimony of an analyst who did not have
personal knowledge of the testing of the sample in question did not satisfy the
requirements of the Confrontation Clause. 564 U.S. at 652.
A lower court that had affirmed Bullcoming's convictions had treated the analyst
as having "'simply transcribed the resul[t] generated by the gas chromatograph machine.'"
564 U.S. at 659. The Court rejected this idea, analogizing to the impropriety of one police
officer observing an objective fact, such as a read-out from a radar gun; putting the result
in writing; and then having another officer familiar with the technology testify. 564 U.S.
at 660 (citing Davis, 547 U.S. at 825).
The State advanced similar arguments to those made in Melendez-Diaz. It argued
that the analyst's affirmation of the testing results were not "adversarial" or
"inquisitorial." Bullcoming, 564 U.S. at 664. But, as Melendez-Diaz had made clear, a
"document created solely for an 'evidentiary purpose' . . . made in aid of a police
investigation, ranks as testimonial." Bullcoming, 564 U.S. at 664. Unlike the documents
in Melendez-Diaz, the Bullcoming documents were not sworn before a notary public. But,
again, "the absence of [an] oath [was] not dispositive" of the question whether a
statement was testimonial. 564 U.S. at 664.
20
In between the Melendez-Diaz and Bullcoming decisions regarding lab results, the
Supreme Court also decided Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L.
Ed. 2d 93 (2011). In that case, the Court addressed the circumstances of an "ongoing
emergency" in a new context: "a nondomestic dispute, involving a victim found in a
public location, suffering from a fatal gunshot wound, and a perpetrator whose location
was unknown at the time the police located the victim." 562 U.S. at 359. At issue were
on-the-scene statements made by the victim in response to police questioning. These facts
required the Court to clarify what Davis had meant when it focused on whether "'the
primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency'" and to determine whether "the 'ongoing emergency' discussed in Davis
extends beyond an initial victim to a potential threat to the responding police and the
public at large." 562 U.S. at 359.
The Court began its analysis by reiterating that determination of the "primary
purpose" of an interrogation is an objective endeavor. 562 U.S. at 359. This objective
analysis includes the circumstances in which an encounter occurs—"e.g., at or near the
scene of the crime versus at a police station, during an ongoing emergency or
afterwards." 562 U.S. at 360.
"The statements and actions of the parties must . . . be objectively evaluated. That is, the
relevant inquiry is not the subjective or actual purpose of the individuals involved in a
particular encounter, but rather the purpose that reasonable participants would have had,
as ascertained from the individuals' statements and actions and circumstances in which
the encounter occurred." 562 U.S. at 360.
Turning to the existence of an ongoing emergency, the Court noted that the
"existence of an ongoing emergency is relevant to determining the primary purpose of the
interrogation because an emergency focuses the participants on something other than
21
'prov[ing] past events potentially relevant to later criminal prosecution.'" 562 U.S. at 361.
Instead, the participants want to end "'a threatening situation.'" 562 U.S. at 361. The
implicit rationale of Davis was that if the primary purpose in making a statement is to
resolve an emergency, the prospect of fabrication is significantly diminished and thus the
Confrontation Clause does not require that such statements be subjected to the crucible of
cross-examination. 562 U.S. at 361. The Court noted that whether an emergency exists is
a "highly context-dependent inquiry" and cautioned that even though an ongoing
emergency is broader than the type of emergency at issue in Davis, "none of this suggests
that an emergency is ongoing in every place or even just surrounding the victim for the
entire time that the perpetrator of a violent crime is on the loose." 562 U.S. at 365.
Moreover, the existence or non-existence of an ongoing emergency is not dispositive of
the testimonial inquiry; "[a]s Davis made clear, whether an ongoing emergency exists is
simply one factor—albeit an important factor—that informs the ultimate inquiry
regarding the 'primary purpose' of an interrogation." 562 U.S. at 366.
The Court also stressed that
"[f]ormality is not the sole touchstone of our primary purpose inquiry because, although
formality suggests the absence of an emergency and therefore an increased likelihood that
the purpose of the interrogation is to 'establish or prove past events potentially relevant to
later criminal prosecution,' . . . informality does not necessarily indicate the presence of
an emergency or the lack of testimonial intent." 562 U.S. at 366 (quoting Davis, 547 U.S.
at 822).
"In addition to the circumstances in which an encounter occurs, the statements and
actions of both the declarant and interrogators provide objective evidence of the primary
purpose of the interrogation." 562 U.S. at 367. "The combined approach . . . ameliorates
problems that could arise from looking solely to one participant," such as "mixed motives
on the part of both interrogators and declarants." 562 U.S. at 368.
22
In summary, the Court directed reviewing courts to
"determine the 'primary purpose of the interrogation' by objectively evaluating the
statements and actions of the parties to the encounter, in light of the circumstances in
which the interrogation occurs. 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 because
statements made to assist police in addressing an ongoing emergency presumably lack the
testimonial purpose that would subject them to the requirement of confrontation. . . .
[T]he existence and duration of an emergency depend on the type and scope of danger
posed to the victim, the police, and the public." 562 U.S. at 370-71.
On the facts of the Bryant case, the Court ultimately concluded that "there was an
ongoing emergency here where an armed shooter, whose motive for and location after the
shooting were unknown, had mortally wounded Covington within a few blocks and a few
minutes of the location where the police found Covington." 562 U.S. at 374. But the
existence of an ongoing emergency alone did not answer whether the statements were
testimonial. 562 U.S. at 374. Ultimately,
"[b]ecause the circumstances of the encounter as well as the statements and
actions of Covington and the police objectively indicate that the 'primary purpose of the
interrogation' was 'to enable police assistance to meet an ongoing emergency,' . . .
Covington's identification and description of the shooter and the location of the shooting
were not testimonial hearsay." 562 U.S. at 377-78.
In 2015's Ohio v. Clark, 576 U.S. ___, 135 S. Ct. 2173, 192 L. Ed. 2d 306, the
Supreme Court addressed the admission of statements made by 3-year-old L.P. to
preschool teachers, which alleged defendant Darius Clark had abused L.P. A teacher
noticed that L.P.'s left eye appeared bloodshot, which led to questioning about what had
23
happened and a discovery of red marks, "'"like whips of some sort,"'" on L.P.'s face. 135
S. Ct. at 2178. L.P. was asked "'Who did this? What happened to you?'" to which L.P
responded "'Dee, Dee,'" which turned out to be a reference to Clark. 135 S. Ct. at 2178.
Before trial, the judge determined that L.P. was not competent to testify, but Ohio rules
of evidence would permit admission of hearsay statements made by child abuse victims.
Clark thus addressed statements made to persons other than police, leaving the
door open for "at least some statements to individuals who are not law enforcement
officers" to raise Confrontation Clause concerns. The Court declined to adopt a
categorical rule excluding such statements from the Sixth Amendment's reach. 135 S. Ct.
at 2181. Still, the identity of the listener is "highly relevant" because "[s]tatements made
to someone who is not principally charged with uncovering and prosecuting criminal
behavior are significantly less likely to be testimonial than statements given to law
enforcement officers." 135 S. Ct. at 2182. The Court ultimately concluded that "L.P.'s
statements occurred in the context of an ongoing emergency involving suspected child
abuse" and "the immediate concern was to protect a vulnerable child who needed help."
135 S. Ct. at 2181. "L.P.'s teachers were not sure who had abused him or how best to
secure his safety." 135 S. Ct. at 2181. "There is no indication that the primary purpose of
the conversation was to gather evidence for Clark's prosecution." 135 S. Ct. at 2181.
The child's young age fortified the Court's conclusion. "[S]tatements by very
young children will rarely, if ever, implicate the Confrontation Clause." 135 S. Ct. at
2182. Research indicates "young children 'have little understanding of prosecution,'"
making it "extremely unlikely that a 3-year-old child in L.P.'s position would intend his
statements to be a substitute for trial testimony." 135 S. Ct. at 2182. Moreover, such
statements were admissible at common law. An 18th century English court had "'tolerated
flagrant hearsay in rape prosecutions involving a child victim who was not competent to
testify because she was too young to appreciate the significance of her oath.'" 135 S. Ct.
24at 2182 (quoting J. Langbein, The Origins of Adversary Criminal Trial 239 [2003]).
When English courts excluded such statements, "they appeared to do so because the child
should have been ruled competent to testify, not because the statements were otherwise
inadmissible." 135 S. Ct. at 2182.
Certain lower courts have directly addressed whether out-of-court statements by
informants are testimonial. These cases can be divided into two classes. The first class
addresses information given to police officers by confidential informants for use in a
criminal investigation. See, e.g., United States v. Cromer, 389 F.3d 662 (2004). Such
statements generally are held to be testimonial. 389 F.3d at 671. The second class
addresses statements made by undercover informants to a defendant or to
nongovernmental personnel during conversations the informant knows the government is
recording. See, e.g., State v. Smith, 289 Conn. 598, 960 A.2d 993 (2008). Such statements
generally are also held to be testimonial, but the statements often have been admissible
nonetheless because they were not offered for the truth of the matter asserted. See, e.g.,
United States v. Gaytan, 649 F.3d 573 (7th Cir. 2011).
Connecticut's Smith case is especially instructive because it addresses several
types of informant statements, including some offered for their truth and some offered
merely for context. In that case, defendant Lawrence Smith was convicted of murder. On
appeal, Smith argued that the trial court improperly admitted a recorded conversation
between Smith's coconspirator and a confidential informant because the included
statements of the informant violated Smith's right to confrontation. The recording was
nearly 4 hours long and included a variety of informant statements. Before trial, the State
conceded that the informant had been acting as a police agent, and Smith conceded that
the statements by the coconspirator were nontestimonial.
25
Because of the length of the recorded conversation, the court divided the
informant's statements into three categories: (1) nonassertive vocalizations, such as
"mm-hmm" or "yeah"; (2) questions the informant posed to the coconspirator about the
crime; and (3) statements the informant made that directly implicated the coconspirator or
the defendant in the commission of the crime. 289 Conn. at 626.
The court began its analysis by noting that many federal and state courts had
concluded that when "an informant's statements were used only to provide context for the
incriminating statements of the other party . . . the informant's statements were neither
hearsay nor considered testimonial statements for the purpose of the [C]onfrontation
[C]lause." 289 Conn. at 625. But the court cautioned that when applying this contextual
approach, "there is a fine line between properly admitting an informant's statements under
this theory and improperly admitting statements that are truly testimonial." 289 Conn. at
625. Moreover, "[t]here is a significant risk that assertive statements made by an
informant and included as part of a recording may be perceived as substantive evidence
of the defendant's guilt in the absence of any limiting instruction." 289 Conn. at 625.
The court easily concluded that the nonassertive vocalizations were
nontestimonial. "To the extent that they provide context for [the coconspirator's]
statements, it is clear that they simply were common vocalizations used in conversation
to acknowledge another person's words as a by-product of active listening rather than to
assert any particular fact." 289 Conn. at 626.
The court also concluded that the second category of statements—questions posed
by the informant about the crime—were nontestimonial. 289 Conn. at 626.
"The questions were used solely for the purpose of providing the context within which
[the coconspirator's] answers could be understood. Indeed, questions standing alone make
26
no assertions at all. They are a means to obtain information, and as such are not '"solemn
declaration[s] or affirmation[s] made for the purpose of establishing or proving some
fact"' as provided by the general definition set forth in Crawford v. Washington, supra,
541 U.S. at 51, 124 S. Ct. 1354." Smith, 289 Conn. at 626.
With respect to the third category—statements made by the informant that directly
implicated the coconspirator or the defendant in the commission of a crime—the court
first concluded that the statements were hearsay—i.e., offered for the truth of the matter
asserted. 289 Conn. at 627. Although the State had initially asserted that the statements
were merely offered for context, it admitted at oral argument that some statements had
been offered for their truth. For example, the informant, referring to the defendant by
name, stated that "'[Larry] always be lying' and 'Larry is the one who hide the body.'" 289
Conn. at 627. Because the statements were offered for their truth, whether they also were
testimonial turned on "whether [the informant] would have a reasonable expectation that
his words would be used in a subsequent prosecution." On the facts of the case, it was
"beyond dispute" that the informant understood the recording would be used in a later
prosecution. 289 Conn. at 627. "Indeed, in the hopes of receiving favorable treatment, he
approached federal authorities specifically to obtain evidence they could use in
subsequent prosecutions." 289 Conn. at 627. Because the statements were testimonial and
because the defendant did not have an opportunity to cross-examine the informant,
admitting the statements violated Smith's rights under the Confrontation Clause. 289
Conn. at 627-28.
Among the lower courts that have previously addressed informant statements is
our own Court of Appeals. In a case that predated our Brown decision, State v. Adams,
35 Kan. App. 2d 439, 131 P.3d 556 (2006), the State introduced testimony from a
detective who recounted statements made by a nontestifying informant during a
telephone conversation with defendant Charles Adams. The goal of the informant's call
27
to Adams, which the informant knew that law enforcement would listen to, was to gather
evidence for a future prosecution of Adams. 35 Kan. App. 2d at 444. The panel ruled
that the informant's statements were testimonial. Because the State could not prove an
attempted cocaine sale without the detective's inadmissible testimony about the
informant's statements during the telephone call, the panel reversed Adams' conviction
on that count of the charging document. 35 Kan. App. 2d at 444.
Our review of United States Supreme Court and lower court precedents persuades
us that the multifactor test we outlined in Brown should not be regarded as the exclusive
or all-encompassing template for determining whether a statement made by an absent
declarant qualifies as testimonial under the Sixth Amendment. The formulation of the
Brown test was a creature of its time, and a purely mechanical application of its factors in
all instances threatens to ignore that the class of testimonial statements, as reflected in
United States Supreme Court language, is broader than formal statements made to police
during an interrogation to solve a crime. Instead, the inquiry should generally seek to
identify statements that are by nature substituting for trial testimony. See Davis v.
Washington, 547 U.S. 813, 828, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (declarant not
acting as a witness, declarant not testifying; declarant's challenged statement "not 'a
weaker substitute for live testimony' at trial"); see also Melendez-Diaz, 557 U.S. at 316("'The Framers were no more willing to exempt from cross-examination volunteered
testimony or answers to open-ended questions than they were to exempt answers to
detailed interrogation.'"); Davis, 547 U.S. at 822 n.1 (although "primary purpose" test
framed in terms of "interrogation," class of testimonial statements not limited to those
elicited in interrogations).
Our expanded examination of previous decisions today makes the panel's heavy
emphasis in this case on the fact that the informant's statements were not made during a
police interrogation problematic. Neither an interrogation setting nor law enforcement
28
listeners are indispensable to a holding that an out-of-court statement is testimonial. See
Melendez-Diaz, 557 U.S. at 316; Clark, 135 S. Ct. at 2182.
Another infirmity in the panel's decision is its reliance on Bourjaily v. United
States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987), a pre-Crawford case that
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004, cited
favorably.
When discussing United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005), the
panel noted that the Hendricks court relied heavily on Bourjaily, which the panel
characterized as "a case in which the United States Supreme Court rejected a claimed
violation of the Confrontation Clause relating to a conversation between a defendant and
a confidential informant." Williams, 2015 WL 5458672, at *5. This statement
mischaracterized Bourjaily by putting the focus on the "conversation" rather than
individual statements made by a particular declarant. On closer examination of
Bourjaily's facts, it is clear that the Crawford Court never intended to imply that
statements made by an informant are per se beyond the scope of the Confrontation
Clause.
In Bourjaily, an informant arranged to sell cocaine to Angelo Lonardo, and
Lonardo agreed to find someone to distribute the drug. When the sale became imminent,
Lonardo "stated in a tape-recorded telephone conversation that he had a 'gentleman
friend' who had some questions to ask about the cocaine." 483 U.S. at 173. In a later call,
the informant spoke to the "friend" about the quality and price of the drugs. 483 U.S. at
173-74. The "friend" turned out to be defendant John Bourjaily. The informant eventually
sold the cocaine to Lonardo, and Bourjaily was arrested immediately after the sale when
Lonardo put the drugs in Bourjaily's car. 483 U.S. at 173-74. At issue on appeal was the
admission of "Lonardo's telephone statements regarding the participation of the 'friend' in
29
the transaction"—i.e., statements made by Bourjaily's coconspirator rather than by the
informant. 483 U.S. at 174. Despite facts involving an informant, the informant's
statements were never in issue in the case. Bourjaily thus provides little guidance here.
The panel's decision also troubles us because of its apparent seduction by the
State's argument that the informant's statements merely supplied context rather than
substantive evidence supporting Williams' guilt. Although we appreciate that the
Connecticut Supreme Court and other courts evidently have also been so seduced, see
Smith, 289 Conn. at 625 (discussing statements' admission for truth of matter asserted as
prerequisite to analysis of whether statements testimonial); see also United States v.
Tolliver, 454 F.3d 600, 666 (confidential informant's statements admissible to put
defendant's admissions on tapes into context), we cannot join this particular party. Our
reading of the United States Supreme Court's decisions keeps us home.
First of all, not all hearsay implicates the Confrontation Clause and not all
statements that implicate the Clause necessarily qualify as hearsay, i.e., out-of-court
statements admitted into evidence to prove the truth of the matter asserted. See Crawford,
541 U.S. at 51. Hearsay and Confrontation Clause analyses are distinct, although the
outcomes they lead to may overlap. Cf. State v. Richmond, 289 Kan. 419, 429 (2009)
(discussing necessity for contemporaneous objections on hearsay, Confrontation Clause
violation). Protection of a defendant's Sixth Amendment right is not dependent on "the
vagaries of the rules of evidence." 541 U.S. at 61. Today we are not called upon to make
an independent hearsay, or hearsay exception, analysis.
Second, we confess to some confusion on the distinction the State would like us to
draw. Context has content. We cannot imagine any evidence of context that does not, and
we fail to see the logic of opinions from other courts that state or imply otherwise.
30
And, third, even if the distinction between context and content has legal
consequence, the facts before us leave no doubt that the informant's statements in this
case, although brief, went well beyond context. The informant's statements, at a
minimum, reinforced two pieces of information vital to the outcome the State sought
from Williams' jury. They did not merely provide context. "Say hi to Dave" provided the
jury with evidence of the identity of the methamphetamine seller, confirming Lind's
testimony that Williams was the person who got into the car. Similarly, "meth" provided
the jury with evidence of the subject of the transaction, which was confirmed by the
KBI's testing of the substance Lind bought. The informant's brief statements were not, as
asserted by Williams, the only proof on those two subjects, but they certainly were some
of the substantive proof on those two subjects, in contrast to the minimizing argument of
the State.
We also note that, in neither instance did the informant's conversational
contribution take the form of a question, requiring a response from the defendant to
provide a relevant fact. See Smith, 289 Conn. at 626 (questions are generally means to
obtain information and not "'"solemn declaration[s] or affirmation[s] made for the
purpose of establishing or proving some fact"'"). In neither instance was an ongoing
emergency brought to a speedier, safer close or a potential danger averted. See Clark, 135
S. Ct. at 2181; Bryant, 562 U.S. at 374; Davis, 547 U.S. at 827. In neither instance did the
informant merely report an observed fact. See Bullcoming v. New Mexico, 564 U.S. 647,
652, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011); Melendez-Diaz v. Massachusetts, 557
U.S. 305, 310, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).
In addition, the State clearly offered the informant's two statements for the truth of
the matter asserted. This point is obvious from the prosecutor's closing argument. The
prosecutor explicitly referenced the "Say hi to Dave" statement as evidence to confirm
Lind's testimony that the defendant was the person who had made the sale. Moreover, the
31
judge gave no contrary limiting instruction, a clarifying step suggested by Connecticut's
Smith court, to prevent the jury from perceiving the evidence of the informant's
statements as substantive evidence of the defendant's guilt. See 289 Conn. at 625.
In addition to our examination of statements themselves, as instructed by the
Supreme Court's precedent, we make an objective study of whether the circumstances
surrounding their utterance lead to a conclusion the statements were testimonial. Those
circumstances include that the statements were made during a controlled drug buy set up
for the express purpose of creating evidence for use at a future prosecution. This makes
the statements more akin to the laboratory reports at the center of Bullcoming and
Melendez-Diaz than to "a casual remark to an acquaintance." Crawford, 541 U.S. at 51.
Indeed, the statements share much in common with those from "[a]n accuser who makes
a formal statement to government officers," as in the paradigmatic Raleigh's Case.
Crawford, 541 U.S. at 51. In the words of the first Brown factor, an objective witness in
the informant's position would "reasonably believe" her statements "would later be
available for use in the prosecution of a crime." State v. Brown, 285 Kan. 261, 291, 173
P.3d 612 (2007).
The State's argument that there is no evidence the informant knew the
conversation was being recorded also is unavailing for three reasons. First, the test is
objective rather than subjective. See Michigan v. Bryant, 562 U.S. 344, 360, 131 S. Ct.
1143, 179 L. Ed. 2d 93 (2011). Second, when courts have held informant statements
recorded without the informant's knowledge to be nontestimonial, the rationale has not
rested on the declarant's lack of knowledge of the recording but on the declarant's lack of
knowledge that "authorities" were or would be listening to the conversation. See
Hendricks, 395 F.3d at 181 (conversations between defendants, third parties
"surreptitiously intercepted" by law enforcement through wiretaps; recordings cannot be
deemed "testimonial" because declarants did not make statements thinking they would be
32
available for later prosecution; very purpose of such wiretaps to capture conversations
without participants knowing that authorities listening). In other words, the declarant
would not have had a reasonable expectation that precise statements would be used in a
future prosecution. On the other hand, cases that have highlighted the fact that a declarant
knew the conversation was being recorded on the way to holding an informant's
statements to be testimonial have done so because there was no law enforcement present
and the declarant was the one wearing a recording device. See, e.g., Gaytan, 649 F.3d at
579. And, third, regardless of whether the drug deal was recorded electronically and
regardless of whether the informant was aware of that fact, a reasonable informant would
have known the encounter was "recorded" in the memory of the participants, each of
which could eventually testify to who said what when.
Other circumstances surrounding the informant's statements in this case also
support a conclusion that the statements qualified as testimonial. The first, "Say hi to
Dave," was actually made to a law enforcement agent. The second, "meth," was made
knowing that a law enforcement agent was in the car and, in fact, on behalf of that agent
in his role as drug buyer. See Brown, 285 Kan. at 291 (second factor). In terms of
primary purpose, see Brown, 285 Kan. at 291 (third factor), we have already established
the sole purpose of the drug buy in which the informant was playing her own part. That
sole purpose of the encounter—which the informant was well aware of—was to create an
evidentiary record to convict Williams. It succeeded.
Finally, we address whether the formality of the informant's statements in this case
was sufficient to make them "inherently testimonial." Brown's formulation of this factor,
as alluded to in our criticism of the Court of Appeals panel above, is too tied to analysis
of a police interrogation scenario to translate very well to the circumstances in this case.
But, in our view, Williams' argument on this factor makes a valid point. The planned
drug buy here lacked the trappings of a formal police interrogation, but it nevertheless
33
followed a law enforcement script in a setting and with actors and props and costumes it
supplied, controlled, and mined, as always intended, for damning evidence against the
drug seller.
We conclude from all of this discussion that the two statements by the informant
were testimonial. Because Williams did not have an opportunity to cross-examine the
informant, admission of the statements violated Williams' right under the Confrontation
Clause. We now turn to whether the error was harmless.
Having decided that the district judge's admission of the challenged informant
statements violated Williams' confrontation right, we apply the federal constitutional
harmless error standard of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed.
2d 705 (1967). See State v. Bennington, 293 Kan. 503, 524, 264 P.3d 440 (2011)
("'Violation of the Confrontation Clause is subject to analysis under the federal harmless
error rule.'"). Under the federal constitutional standard, an
"'error may be declared harmless where the party benefitting from the error proves
beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., proves there is no reasonable
possibility that the error affected the verdict.'" State v. Dupree, 304 Kan. 377, 402-03,
373 P.3d 811 (2016) (quoting State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 [2011],
cert. denied 565 U.S. 1221 [2012]).
To prevent reversal, the State, as the party benefiting from the error, must prove
that "there is no reasonable possibility that the error contributed to the verdict." Ward,
292 Kan. 541, Syl. ¶ 6. To meet this burden, the State relies on the cumulative weight of
other evidence proving the two propositions that the informant's statements tended to
establish: the identity of the person making the sale and the substance subject to that
sale. The State correctly notes that Lind provided a first-person account of the drug sale
34
and that he identified Williams as the seller. Moreover, Braun, who was listening to the
sale as it happened through Lind's wire, was able to identify Williams' voice. Lind also
testified that, based on his law enforcement experience, the substance he purchased was
methamphetamine. This was further confirmed at the time of the sale by Lind's field test
of the substance. The identity of the substance as methamphetamine was ultimately
confirmed by the more rigorous testing of the KBI forensic laboratory, as testified to by
Riddle.
Based on the overwhelming weight of the other evidence against Williams, we
have no hesitance in holding that there is no reasonable possibility the error in admitting
the informant's testimonial evidence contributed to the verdict. The Sixth Amendment
violation was harmless.
CONCLUSION
The decision of the Court of Appeals is affirmed, and the judgment of the district
court is affirmed.
ROSEN, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 111,046
vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.
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