Head v. State

⁶⁴⁴ SALMON, J. On Memorial Day, 2004, Kevin Darby, age twenty-four, was shot eight times. The Prince George’s County police responded immediately to the scene of the shooting. The first police officer to arrive was Officer Jeremy George. With the strong smell of gunpowder still in the air, Officer George asked Darby: “Who shot you?” Darby answered: “Bobby”—referring to Robert Head.

Darby died about forty minutes after giving this answer. Head was charged and later found guilty of second-degree murder of Darby, along with the attempted second-degree murder of one Roderick Sanders, who was shot by the same gunman who fatally wounded Darby. 1 Several questions are raised by Head in this appeal. The most important (and interesting) is: Did the trial court err in allowing Officer George to testify that the decedent told him that he had been shot by “Bobby”? Head claims that the court’s decision to allow this statement into evidence was erroneous because it denied him the ability to confront the witnesses against him in contravention of the rights afforded him by the Sixth Amendment to the United States Constitution.

I. At the time Head was tried in the Circuit Court for Prince George’s County and when this case was argued before us, the most recent pronouncement by the Supreme Court concerning the right-to-confront-witnesses issue raised by Head was Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). In Crawford , the Court held that the confrontation clause, with one possible exception, barred “admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, ⁶⁴⁵ and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54 , 124 S.Ct. 1354 . Critical to the holding in Crawford was the phrase “testimonial statements,” because (the court implied) only statements of that sort caused the out-of-court declarant to be a “witness” within the meaning of the confrontation clause. Id. at 51 , 124 S.Ct. 1354 .

Non-testimonial statements by an out-of-court declarant, while still subject to traditional limitations upon hearsay evidence, are not governed by the confrontation clause. About six weeks after we heard oral argument in the case sub judice, the United States Supreme Court decided Davis v. Washington, 547 U.S.-, 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006). In Davis , the Court said: Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: 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. 126 S.Ct. at 2273-74 (footnote omitted).

In deciding the confrontation issue raised by Head, we shall use the just-quoted definition to decide whether the trial court erred in allowing Officer George to tell the jury what Darby said.

II

The central issue presented to the jury was whether Head was the criminal agent who fatally shot Darby and wounded Roderick Sanders. Head presented an alibi defense and ⁶⁴⁶ called several witnesses who testified that at the approximate time of the shooting he was elsewhere. A. Roderick Sanders’ Trial Testimony The State’s star witness was Roderick Sanders. He testified that prior to the shooting he was well acquainted with Head.

On the afternoon of the shooting, Head and Darby (a close friend of Sanders’) visited Sanders’ home in Upper Marlboro. Darby complained that he could not find a ring of keys that belonged to him, and throughout the afternoon, he talked about locating the keys. Finally, when Head, Darby, and Sanders were all sitting on the living room couch, making plans for the evening, Darby said that he wanted to look for the keys at the home of Head’s girlfriend. Darby then remarked that he could kick in the door of the house to conduct the search, but he did not want to do so because Head was dating the woman whose house would be invaded.

This remark upset Head, who immediately left the house. Head returned shortly thereafter, began pacing around, and then asked Darby and Sanders why his girlfriend “was becoming involved.” Without waiting for a reply, Head (according to Sanders) next pulled out a gun and shot him and then repeatedly shot Darby. After the shooting, Head left the house. Darby then got up from the couch and ran into the kitchen where he collapsed.

Sanders called 911 and reported the shootings. 2 B. The Motion in Limine Hearing Prior to commencement of trial, appellant’s counsel made a motion in limine to prevent the State from introducing into evidence the statement Darby made to Officer George. A hearing on the motion was held, out of the presence of the jury, on the morning of the first day of trial. Officer George testified at the hearing that he arrived at Sanders’ residence at 6:46 p.m., which was eight minutes after ⁶⁴⁷ the police received a 911 call advising them of a shooting at Sanders’ home. Immediately after he entered the front door, Officer George saw Sanders lying injured on the living room couch.

He went outside to get a first-aid kit in order to provide medical assistance to Sanders. When Officer George returned, Sanders told him that somebody else had also been shot. The officer followed a trail of blood into the kitchen. He found Darby lying on the kitchen floor.

When Officer George first saw Darby, he “didn’t seem to be in very good condition at all,” although the officer “didn’t see a lot of blood.” One of Darby’s arms appeared to be broken, and the victim kept moving the broken arm and “wasn’t focusing on” the officer. When Officer George asked Darby if he was “okay,” Darby “kept saying, ‘help me, help me.’ ” Officer George next asked Darby “who shot him.” Darby replied, “Bobby.” Officer George testified upon cross-examination by defense counsel that when he arrived at Sanders’ house “a chaotic situation” existed. When he spoke to Darby, there was the “fresh smell of gunpowder in the air,” and Officer George “didn’t even know if ... the person who caused that gunpowder was still in the house.” Darby kept “yelling out” the words “help me, help me,” and in the officer’s view, it was still “potentially even a dangerous situation____” C. Resolution of the in Limine Motion Appellant’s counsel, citing Crawford, supra, contended at the in limine hearing that Darby’s out-of-court statement identifying appellant as the shooter was “testimonial” in that the inquiry by Officer George was made “for purposes of investigation.” Counsel for Head was asked by the court whether the statement by Darby came within the ambit of the “dying declaration” exception to the hearsay rule. See Md. Rule 5-804(b)(2).

In reply, defense counsel took the position that because Darby’s statement was “testimonial” it should be excluded under Crawford , whether it fit within the definition of one or more of Maryland’s exceptions to the hearsay rule. ⁶⁴⁸ In the alternative, counsel argued that the dying declaration exception to the hearsay rule was inapplicable because there was insufficient proof that Darby believed that death was imminent at the time he identified the defendant as the person who had shot him. 3 The trial court ruled that the statement made by Darby was an excited utterance and also met all the prerequisites of a dying declaration. Relying on a footnote in Crawford , the Court observed that the Supreme Court had “left for another day” the question of whether the distinction made in Crawford between testimonial and nontestimonial hearsay should be applied to the dying declaration exception to the rule prohibiting the admission of hearsay evidence. 4 The trial judge said: I do not believe that ... the United States Supreme Court or any court applying Crawford will rule that [dying declarations should be excluded from evidence], nor have [any courts] to date [ruled], that ... to admit a dying declaration ... under the facts of this case would deny the ⁶⁴⁹ defendant due process under either the United States or Maryland Constitutions.... The trial judge did not say explicitly whether he believed the objected-to testimony was “testimonial.” But the court ruled that the statement made to Officer George, in which Darby identified appellant as the man who shot him, was admissible. The court then granted defense counsel, pursuant to Maryland Rule 2—517(b)(2), a continuing objection to any testimony by Officer George concerning what Darby told him. 5 III.

In this appeal, Head does not take issue with the proposition that Darby’s statement fell within two firmly rooted exceptions to the hearsay rule, i.e., the excited utterance exception and the exception for dying declarations. 6 Appellant argues that the Crawford case made it “clear that a direct accusation of a past crime admitted in lieu of the accuser’s live testimony at trial is a core testimonial statement requiring confrontation.” As will be shown, appellant reads the holding in Crawford too broadly. 7 ⁶⁵⁰ In Crawford , it was unnecessary for the Court to define precisely what it meant by the word “interrogations,” id. at 53 , 124 S.Ct. 1354 , when it said, “Statements taken by police officers in the course of interrogations are ... testimonial under even a narrow standard.” 541 U.S. at 52 , 124 S.Ct. 1354 . But in Davis, supra, the Supreme Court was required to answer that precise question. See Davis, 126 S.Ct. at 2276 . The Crawford case concerned the admissibility of a tape-recorded statement given to the police by Sylvia Crawford (“Sylvia”) at a police station.

The statement was used by the State of Washington when it prosecuted Sylvia’s husband, Michael Crawford (“Michael”), for assault with intent to murder one Kenneth Lee. Lee was stabbed by Michael after Sylvia told her husband that Lee had tried to rape her. Crawford, 541 U.S. at 39 , 124 S.Ct. 1354 . At trial, Michael interposed a claim of self-defense.

Sylvia did not testify at trial because of the State’s marital privilege. Over defense counsel’s objection, the State introduced Sylvia’s tape-recorded statement into evidence. Id. at 38-39 , 124 S.Ct. 1354 . The State’s theory in admitting the hearsay statement was that it came within an exception to the hearsay rule that allowed for admissions against penal interest made by out-of-court declarants. 8 Id. at 40 , 124 S.Ct. 1354 .

Sylvia’s tape-recorded statement was unhelpful to Michael because “it implicated ... [him] in Lee’s stabbing and at least arguably undermined his self-defense claim.” Id. at 65 , 124 S.Ct. 1354 . The Crawford Court held that Sylvia’s tape-recorded statement was testimonial and that the introduction of the statement violated Michael’s Sixth Amendment right to confront the witnesses against him. Id. at 70 , 124 S.Ct. 1354 . In Crawford , the Court pointed out that ⁶⁵¹ Sylvia Crawford made her statement while in police custody, herself a potential suspect in the case.

Indeed, she had been told that whether she would be released “depend[ed] on how the investigation continue[d].” ... Id. at 65 , 124 S.Ct. 1354 . In Davis , the Supreme Court considered two appeals that were consolidated for argument, i.e., Davis v. Washington (No. 05-5224) and Hammon v. Indiana (No. 05-5705). Davis, 126 S.Ct. at 2270, 2272 .

In No. 05-5224, Adrian Davis, the petitioner, was charged by the State of Washington with felony violation of a domestic no-contact order. Id. at 2271 . At Davis’ trial, the State proved that on February 1, 2001, a 911 emergency operator in Washington state received a phone call from Davis’ former girlfriend, Michelle McCottry. Id. at 2270 .

When the operator answered the call, the connection terminated before anyone spoke. Id. The operator reversed the call, and Ms. McCottry answered the phone. The operator and Ms. McCottry then engaged in a conversation in which the operator learned that a domestic disturbance between McCottry and her former boyfriend, Adrian Davis, had occurred.

Id. at 2271 . The pertinent part of the 911 conversation was as follows: 911 OPERATOR: Hello. COMPLAINANT [McCOTTRY]: Hello. 911 OPERATOR: What’s going on? COMPLAINANT: He’s here jumpin’ on me again. 911 OPERATOR: Okay.

Listen to me carefully. Are you in a house or an apartment? COMPLAINANT: I’m in a house. 911 OPERATOR: Are there any weapons? COMPLAINANT: No. He’s usin’ his fists. 911 OPERATOR: Okay.

Has he been drinking? COMPLAINANT: No. 911 OPERATOR: Okay, sweetie. I’ve got help started. Stay on the line with me, okay?

COMPLAINANT: I’m on the line. ⁶⁵² 911 OPERATOR: Listen to me carefully. Do you know his last name? COMPLAINANT: It’s Davis. 911 OPERATOR: Davis? Okay, what’s his first name?

COMPLAINANT: Adrian. 911 OPERATOR: What is it? COMPLAINANT: Adrian. 911 OPERATOR: Adrian? COMPLAINANT: Yeah. 911 OPERATOR: Okay. What’s his middle initial?

COMPLAINANT: Martell. He’s runnin’ now. 126 S.Ct. at 2271 . Approximately four minutes after the 911 call, police officers arrived at Ms. McCottry’s residence and observed McCottry’s “shaken state, the ‘fresh injuries on her forearm and her face,’ and her ‘frantic efforts to gather her belongings and her children so that they could leave the residence.’ ” Id. at 2271 (quoting from State v. Davis, 154 Wash.2d 291, 296 , 111 P.3d 844, 847 (2005) (en banc)). At Davis’ trial, the two officers who responded to the scene testified that McCottry exhibited injuries that appeared to be fresh, but neither officer testified as to the cause of the injuries.

Id. at 2271. McCottry did not testify; but, over Davis’ objection, the trial court admitted, inter alia, the portions of the recording of McCottry’s conversation with the 911 operator that are quoted above. Id. Davis was convicted of violation of the domestic no-contact order, and his conviction was affirmed by both the Washington Court of Appeals and the Washington Supreme Court.

Id. The Supreme Court was required in Davis to determine whether the statements made by McCottry to law enforcement personnel during the 911 call were “testimonial” and thus inadmissible based on the confrontation clause. Id. at 2270.' In resolving that issue, the Davis Court first discussed what it had meant when it said in Crawford that “[statements taken by police officers in the course of interrogations fit within the core class of testimonial statements.” Crawford, ⁶⁵³ 541 U.S. at 51 , 124 S.Ct. 1354 ; see Davis, 126 S.Ct. at 2273 . The Court said: The questioning that generated the deponent’s statement in Crawford,—which was made and recorded while she was in police custody, after having been given Miranda warnings as a possible suspect herself—“qualifies under any conceivable definition” of an “interrogation,” 541 U.S. at 53 n. 4, 124 S.Ct. 1354 , 158 L.Ed.2d 177 .

We therefore did not define that term, except to say that “[w]e use [it] ... in its colloquial, rather than any technical legal sense,” and that “one can imagine various definitions ..., and we need not select among them in this case.” Ibid. The character of the statements in the present cases is not as clear, and these cases require us to determine more precisely which police interrogations produce testimony. Id. Later in its opinion, the Davis Court went on to say: The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements.

When we said in Crawford, supra, at 53 , 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 , that “interrogations by law enforcement officers fall squarely within [the] class” of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford , “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” 541 U.S. at 51 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 . (The solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood.

See, e.g., United States v. Stewart, 433 F.3d 273, 288 (C.A.2 2006) ⁶⁵⁴ (false statements made to federal investigators violate 18 U.S.C. § 1001 ); State v. Reed, 2005 WI 53, ¶ 30 , 280 Wis.2d 68 , 695 N.W.2d 315, 323 (state criminal offense to “knowingly giv[e] false information to [an] officer with [the] intent to mislead the officer in the performance of his or her duty”).) A 911 call, on the other hand, and at least the initial interrogation conducted in connection with 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. Id. at 2276 (emphasis added). Judge Sealia, speaking for the Court in Davis, said that the portions of McCottry’s 911 call quoted supra were not testimonial even though the statements were given to agents of law enforcement, id. at 2276-77, and identified Adrian Davis as the person who had physically attacked the complainant. The Court stressed four factors, none of which were present in the out-of-court declaration made by Sylvia Crawford in concluding that what Ms. McCottry said to the 911 operator was nontestimonial: (1) Ms. McCottry was speaking to a law enforcement agent about facts that were “actually happening,” rather than describing past events; (2) unlike the out-of-court declarations made by Sylvia Crawford, Ms. McCottry was “facing an ongoing emergency” and was plainly making “a call for help against bona fide physical threats”; (3) the nature of what was asked and answered, viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past; and (4) Ms. McCottry’s “frank answers” were provided over the phone in an environment that was not tranquil, or even (as far an any reasonable 911 operator could make out) safe, which contrasted with the situation in Crawford where the declarant “was responding calmly, at the station house, to a series of questions, with the officer interrogator taking and making notes of her answers....” Id. at 2276-77.

The Davis Court was careful to point out that “conversations which begin as an interrogation to determine the need ⁶⁵⁵ for emergency assistance can evolve into testimonial statements once that purpose has been achieved.” Id. at 2277. The Court explained: In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, from that point on, McCottry’s statements were testimonial, not unlike the “structured police questioning” that occurred in Crawford, 541 U.S. at 53 n. 4, 124 S.Ct. 1354 , 158 L.Ed.2d 177 .

This presents no great problem. Just as, for Fifth Amendment purposes, “police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect,” New York v. Quarles, 467 U.S. 649, 658-659 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984), trial court will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.[ 9 ] Id. In resolving the companion case (No. 05-5705), the Davis Court was called upon to decide if an out-of-court statement made by one Amy Hammon (“Amy”) was testimonial hearsay and therefore inadmissible.

Id. at 2272-73. On the night of February 26, 2003, the police responded to the home of Hershel and Amy Hammon due to a report of a “domestic disturbance.” Id. at 2272. Amy gave the police permission to ⁶⁵⁶ enter the home, and when the officers did so, they noticed that the glass front to a gas heating unit had been broken and flames were being emitted from the front of the unit. Id.

The police found Hershel Hammon, Amy’s husband, in the kitchen. He assured the officers that, although he and his wife had been in an argument, the argument had never been physical and everything “was fine now.” Id. While one of the officers remained with Hershel, the other went into the living room to talk to Amy. The officer who interviewed Amy was later to testify at Hershel’s trial that Amy told him that Hershel, during an argument, “pushed her onto the ground, had shoved her head into the broken glass of the heater, and that he had punched her in the chest twice____” Id. at 2272-73.

While Amy was being interviewed by the police officer, Hershel made several attempts to participate in the conversation between the police and Amy. Id. at 2272. The officers insisted, however, that Hershel stay separate from his wife so that they could investigate what had occurred. After discussing the events with Amy, the police had her fill out an affidavit in which she handwrote the following: “Broke out Furnace & shoved me down on the floor into the broken glass.

Hit me in the chest and threw me down. Broke out lamp & phone. Tore up my van where I couldn’t leave the house. Attacked my daughter.” Id.

Amy was not available to testify at trial because she disobeyed a subpoena. The trial judge, over Hershel’s counsel’s objection, allowed Amy’s affidavit to be admitted into evidence as a “present sense impression.” Id. Amy’s oral statement to the police officers was admitted as an “excited utterance.” Hershel was convicted at a bench trial of domestic battery and probation violation. Id.

His convictions were affirmed by the Indiana Supreme Court, which concluded that Amy’s oral statement was not “testimonial” and was admissible for state-law purposes as an excited utterance. The Indiana Supreme Court also concluded that, although Amy’s affidavit was testimonial and therefore should not have been admitted, the ⁶⁵⁷ admission of the affidavit was harmless beyond a reasonable doubt. Id. at 2273. The Davis Court reversed Hershel’s conviction due to the erroneous admission of the testimony concerning what Amy orally told the police.

In doing so, Judge Scalia, for the Court, said: It is true that the Crawford interrogation was more formal. It followed a Miranda warning, was tape-recorded, and took place at the station house, see 541 U.S. at 53 n. 4, 124 S.Ct. 1354 , 158 L.Ed.2d 177 . While these features certainly strengthened the statements’ testimonial aspect— made it more objectively apparent, that is, that the purpose of the exercise was to nail down the truth about past criminal events—none was essential to the point. It was formal enough that Amy’s interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his “investigation].” ...

What we called the “striking resemblance” of the Crawford statement to civil-law ex parte examinations, 541 U.S. at 52 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 , is shared by Amy’s statement here. Both declarants were actively separated from the defendant—officers forcibly prevented Hershel from participating in the interrogation. Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over.

Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; that are inherently testimonial. Although we necessarily reject the Indiana Supreme Court’s implication that virtually any “initial inquiries” at the crime scene will not be testimonial, see 829 N.E.2d at 453, 457, we do not hold the opposite—that no questions at the scene will yield nontestimonial answers. We have already observed of domestic disputes that “[o]fficers called ⁶⁵⁸ to investigate ... need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel, 542 U.S. at 186, 124 S.Ct. 2451 , 159 L.Ed.2d 292 . Such exigencies may often mean that “initial inquiries” produce nontestimonial statements.

But in cases like this one, where Amy’s statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime