STATE OF MISSOURI, Plaintiff-Respondent v. RONELL M. COOPER

STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
v. ) No. SD34346
)
RONELL M. COOPER, ) Filed: Jan. 31, 2017
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable Dan W. Imhof
REVERSED AND REMANDED
Ronell M. Cooper (“Defendant”) was convicted after a bench trial of third-degree
domestic assault for causing physical injury to S.A ("Victim") “by grabbing and twisting
her wrist[.]” See section 565.074. 1 Victim did not testify at Defendant’s trial. In a single
point, Defendant asserts that the admission of Victim's out-of-court statements to police
1
Section 565.074 provides, in pertinent part:
1. A person commits the crime of domestic assault in the third degree if the act involves a family or
household member, including any child who is a member of the family or household, as defined in
section 455.010 and:
(1) The person attempts to cause or recklessly causes physical injury to such family or household
member[.]
Unless otherwise noted, all statutory references are to RSMo Cum. Supp. 2012.
1
violated his constitutional right to confront the witnesses against him. 2 Finding merit in
this claim, we reverse and remand.
Applicable Principles of Review and Governing Law
As relevant here, the Confrontation Clause of the Sixth Amendment to the United
States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him[.]” U.S. Const. amend. VI.
Missouri’s constitution provides the same right. Mo. Const. art. 1, sect. 18(a); State v.
Schaal, 806 S.W.2d 659, 662 (Mo. banc 1991).
Whether a defendant’s confrontation rights were violated is a question of law that
we review de novo. State v. March, 216 S.W.3d 663, 664-65 (Mo. banc 2007).
“Properly preserved confrontation clause violations are presumed prejudicial[,]” State v.
Justus, 205 S.W.3d 872, 881 (Mo. banc 2006), and any resulting conviction may only be
upheld if the violation was harmless beyond a reasonable doubt, “meaning that there is no
reasonable doubt that the error . . . failed to contribute to the [trial court]’s verdict.”
March, 216 S.W.3d at 667 (citing Chapman v. California, 386 U.S. 18, 24 (1967)).
2
The State did not file a brief. The following observation is equally applicable in this case:
The prosecuting attorney, who represents the state in misdemeanor appeals [see
section 56.060.1], has not filed a respondent’s brief, although the allotted time for him to
do so is long past. It would seem that if the state was serious enough about this case to
prosecute it, it would be serious enough to try and justify the conviction, instead of
leaving to us the task of analyzing defendant’s arguments without the benefit of the
state’s point of view. Although there is no penalty prescribed for failure of the
respondent state to file a brief after appeal of a conviction in a criminal case, we cannot
understand why a prosecutor would neglect his statutory duty to see that the state was
adequately represented through the entire criminal proceeding.
State v. Harrington, 679 S.W.2d 906, 907 (Mo. App. S.D. 1984).
2
The Evidence
The State’s misdemeanor information alleged that on or about September 25,
2014, Defendant “recklessly caused physical injury to [Victim] by grabbing and twisting
her wrist, and [Victim] and [D]efendant were family or household members in that
[Victim] and [D]efendant were adults who were related by blood.” The only witnesses at
Defendant’s trial were Springfield Police Department officers Eric Rogers (“Officer
Rogers”), Patrick Lightwine (“Officer Lightwine”), and Alberto Estrada (“Corporal
Estrada”). Of these witnesses, only Officer Rogers testified about what Victim told the
police, and his testimony was as follows.
Sometime after 10:00 p.m. on September 25, 2014, Officer Rogers was
dispatched to a residential address to investigate an assault call. Upon being admitted to
the residence, he spoke with Victim. Victim was crying, she was holding her right arm
against her body, and she had a swollen lip. Officer Rogers said he asked Victim about
“what had happened” to her. When the prosecutor asked him what Victim said, defense
counsel objected that any responses would constitute hearsay and would violate
Defendant’s “right to confrontation under the Sixth Amendment of the United States
Constitution, and . . . Article I, Section 18(a) of the Missouri Constitution.” The
prosecutor responded that the testimony was admissible under the “excited utterance”
exception to the hearsay rule and that it would not implicate the Confrontation Clause
because Victim’s statements were not testimonial. After some discussion, the trial court
ultimately overruled defense counsel’s objection and then allowed defense counsel to
have a continuing objection “to all the statements [of Victim]”
3
Officer Rogers then proceeded to testify that, according to Victim, Defendant had
forced open her front door and said he was there “to get [his] stuff.” Victim tried to stop
him, but Defendant pushed past her and ran toward a bedroom where he then began to
throw the contents of a closet onto the floor. The prosecutor asked Officer Rogers about
whether Victim had explained how her arm had been injured. Officer Rogers replied:
Yes. I -- after -- I’d have to refer to my report to the exact -- but it
was -- after he had pushed her initially into the hallway -- or to the
doorway that led to the hallway from the bedroom, and -- she was able to
get up. She had a -- she called it a dolphin lamp -- I assumed it was a
lamp that -- that looked like a dolphin -- in her hand, and she also had a
hammer in her hand. Went back to her -- or went back to him and at that
point was again telling him to stop going through the stuff. He turned
around, grabbed her by the right arm, twisted it, and -- and then flung her
up against the -- onto the bed. And then once onto the bed -- and that’s
when she’s claiming that her shoulder and her wrist was hurt, whenever he
grabbed her right arm and twisted it and flung her onto the bed. That’s
when she told me that that’s what caused the injury to her shoulder and her
right wrist.
On cross-examination, Officer Rogers testified as follows:
Q. You put all the information she told you into a report; right?
A. Right.
Q. Why were you asking her about -- you were asking her these things so
that you could document it in your report; correct?
A. Correct.
Q. And you do the report so that they could be used in court later on, in
circumstances just like today; right?
A. Correct.
Officer Lightwine had been dispatched to Victim’s residence around the same
time as Officer Rogers. When the officers arrived, Defendant was standing outside the
front of the residence. Defendant was eventually arrested, and Corporal Estrada later
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spoke with him at the Greene County jail after Defendant was advised of his Miranda
rights. 3 Defendant claimed that he had entered Victim’s residence after being invited
inside. He claimed that an argument ensued, and Victim pushed him against a kitchen
sink, threw a pot of hot water at him, and chased him with a hammer. In his statement to
Officer Lightwine, Defendant claimed that he “restrained” Victim, but Defendant
otherwise “didn’t really go into great detail . . . about it.” According to Corporal Estrada,
“there was a -- kind of a struggle over the hammer, and apparently -- he claims that she
might have been hit in the mouth with the hammer.” Both Officer Lightwine and
Corporal Estrada saw scratch marks on one or both of Defendant’s arms, but neither
observed any burn marks.
Corporal Estrada testified that he spoke with Victim the day after the date of the
charged crime. At that time, her arm was in a “Velcro-type cast,” and she had a
“laceration or a swollen lip.” The trial court sustained defense counsel’s objections to
any testimony from Corporal Estrada regarding: (1) statements Victim had made to
Corporal Estrada; and (2) Victim’s medical records.
Additional background necessary to the disposition of Defendant’s point is
included below as we address his point on appeal.
Analysis
Defendant claims the trial court erred in overruling defense counsel’s objection to
Officer Rogers’ testimony “that he was told by [Victim] that her injuries were caused by
[Defendant]’s twisting her arm and flinging her on the bed” because this “testimonial
hearsay” violated his right to confrontation. We agree.
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
5
The Supreme Court of the United States has held that the Confrontation Clause
prohibits “admission of testimonial statements of a witness who did not appear at trial
unless [the witness] was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54
(2004). “It is the testimonial character of the statement that separates it from other
hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject
to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006); see also
March, 216 S.W.3d at 665 (noting that Crawford “divorced the hearsay exceptions from
the Confrontation Clause analysis”).
“The Confrontation Clause analysis thus centers on whether the particular
evidence at issue is ‘testimonial’ in nature.” Glass v. State, 227 S.W.3d 463, 472 (Mo.
banc 2007). 4 In dealing with statements made during a police interrogation, the Supreme
Court has provided the following guidance:
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.
Davis, 547 U.S. at 822; see also State v. Kemp, 212 S.W.3d 135, 148 (Mo. banc 2007)
(“Davis provides a functional analysis for determining whether an out-of-court statement
is testimonial and, thus, subject to the Confrontation Clause restrictions of Crawford”).
Applying such an objective view here causes us to conclude that the primary
purpose of Officer Rogers’s interrogation of Victim was not to assist in an ongoing
4
For this reason, the “excited utterance” exception to the hearsay rule is not relevant to the resolution of
this appeal.
6
emergency (at that point, Defendant (the only suspect) had been identified at the scene,
questioned by Officer Lightwine, and arrested) but, instead, to investigate a possible
crime. Further, Officer Rogers expressly admitted that he asked Victim about “what had
happened” (emphasis added) for the purpose of gathering information to be used in a
criminal prosecution. Cf. Davis, 547 U.S. at 830 (noting that the investigating officer in
Hammon v. Indiana (the companion case to Davis) “was not seeking to determine . . .
‘what is happening,’ but rather ‘what happened’”). As a result, we find that Victim’s out-
of-court statements were “testimonial” as defined in Davis.
The record does not indicate (and we have nothing from the State claiming) that
Victim was unavailable to testify and that Defendant had a prior opportunity to cross-
examine her. We therefore find that the admission of Victim’s testimonial, out-of-court
statements violated Defendant’s rights under the Confrontation Clause. See Crawford,
541 U.S. at 53-54. Such a violation requires reversal unless the State demonstrates that
the admission of Victim’s testimonial statements was harmless beyond a reasonable
doubt. 5 See March, 216 S.W.3d at 667.
Here, the trial court had to find that Defendant caused injury to Victim “by
grabbing and twisting her wrist” in order to find him guilty of third-degree domestic
assault as charged. In explaining its ruling, the trial court stated:
It is a little problematic knowing at what point I should stop using
her statements, but I think I -- I don’t have a bit of a problem with her --
with considering it an excited utterance for her to have said that -- that her
arm was hurt and that he did that. Even if I’m going too far by saying he
did that, he says he did it.
There are two problems with the trial court’s rationale. First, as earlier noted, whether
the referenced statement by Victim would qualify as an “excited utterance” exception to
5
By failing to file a brief, the State has presented us with no such argument.
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the hearsay rule is not relevant to an alleged violation of the Confrontation Clause.
Second, neither Officer Lightwine nor Corporal Estrada testified that Defendant said he
“did it.” Rather, they testified that, in Defendant’s words, he had “restrained” Victim and
that there had been “a struggle over the hammer[.]”
The only evidence that Defendant himself caused the injury to Victim’s arm by
grabbing and twisting her wrist was Victim’s statement to that effect in response to
Officer Rogers’s question about what had happened. The erroneous admission of this
statement that the trial court then relied on in finding Defendant guilty of the charged
crime was not harmless beyond a reasonable doubt. Cf. March, 216 S.W.3d at 667
(holding that the admission of a laboratory report in violation of the Confrontation Clause
was not harmless because it was the only evidence offered to prove an element of the
charged crime).
Defendant’s point is granted. The judgment is reversed, and the case is remanded.
DON E. BURRELL, J. – OPINION AUTHOR
JEFFREY W. BATES, P.J. – CONCURS
MARY W. SHEFFIELD, C.J. – CONCURS
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