State v. Lucas

ADKINS, J. We are asked to decide whether responsive statements made by a visibly upset woman, while standing in her apartment doorway, to a police officer responding to a “domestic” call, were testimonial and therefore inadmissible under the Sixth Amendment’s Confrontation Clause. These statements were made in response to the officer asking her “what happened” and “where she got the marks[.]” These statements were admitted at the bench trial in the Circuit Court for Anne Arundel County which resulted in the conviction of Dennis Lamont Lucas, respondent, for second degree assault. 1 The State appeals from the judgment of the Court of Special Appeals reversing that conviction on the ground that respondent’s constitutional rights were violated. Lucas was alleged to have assaulted his girlfriend during a domestic dispute. Lucas moved in limine to exclude the victim’s statements made to police officers who responded to the “domestic” call, contending that the statements’ admission would violate his right of confrontation under the Sixth Amendment and the Maryland Declaration of Rights.

Satisfied that the statements were admissible as an excited utterance and allowable under Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the Circuit Court denied Lucas’s motion. The Court of Special Appeals, in an unreported opinion, reversed and remanded for a new trial, ³⁰⁹ concluding that the statements were made under official interrogation, an obvious substitute for live testimony, and admitted in violation of Lucas’s right to confront his accuser: There was no emergency in progress; [the alleged victim] was in no present danger from [Lucas]; she was being protected by the police; she was actively separated from [Lucas]; she was telling what happened in the past, not the present; and the interrogation was part of an investigation into possibly criminal past conduct. We issued a writ of certiorari to review the statements under Crawford and its progeny. We agree with the intermediate appellate court that the statements were testimonial because the primary purpose of the interrogation was to investigate a possible crime, and not to enable the officers to meet an ongoing emergency.

FACTS AND LEGAL PROCEEDINGS On January 25, 2005, at approximately 11:00 p.m., Anne Arundel County Police Officer Wilbert Fowler received a “[domestic call.” Fowler and Officer Dalton responded to 412 Pamela Road, Apartment B, in Glen Burnie a couple of minutes after receiving the call. Upon their arrival at the residence, Fowler observed Lucas sitting on some steps outside of the apartment. Fowler descended four or five stairs in getting to Apartment B, which was located in the lower level of the apartment building. Dalton stayed with Lucas outside of the apartment.

Fowler encountered Emily Mulligan, the alleged victim, at her apartment “threshold” and observed that she was crying, her face was pretty red, her “eyes were kind of swollen and she had red marks on her neck.” Fowler testified that he then questioned Mulligan “about why [they] were called to the residence and why she was crying.” According to Fowler, Mulligan responded that she and Lucas, her boyfriend, “were in a verbal argument” about “breaking up” and “that it became physical after that.” Fowler testified that she told him she was “kicked in the leg” by Lucas and that “he grabbed her around the neck.” She also ³¹⁰ told Fowler she sustained an abrasion or laceration on her back. Fowler did not have Mulligan sit down during the conversation. When asked by counsel “[w]hat if any rights did you advise her of[,]” Fowler responded, “I told her we were there for an investigation.” He estimated that the conversation lasted “[m]aybe three to five minutes.” In describing Mulligan’s demeanor during this period, he said, “She was visibly upset. She was still crying.

Very shaky.” Fowler indicated that he asked Mulligan “[mjaybe one or two” questions and “kind of let her do the talking.” On cross-examination, Fowler agreed that his “purpose in speaking with Ms. Mulligan or knocking on the door and speaking with the occupants was to conduct an investigation” and that he was “there to gather information.” He indicated that Mulligan filled out a “domestic violence form” while at the apartment and that he “went over it” with her. Mulligan was also photographed approximately 15 to 20 minutes after Fowler’s initial conversation at the apartment. On redirect, Fowler stated that his initial questions to Mulligan were “why we were there, what happened” and “where she got the marks from[.]” Fowler indicated that Officer Robey arrived on the scene after Mulligan told him about the marks. Fowler relayed to Robey what Mulligan had told him.

He then went outside to join Lucas and Officer Dalton while Robey spoke with Mulligan for approximately five minutes. When Robey came out of the apartment and said something to Lucas, Lucas “[s]pun around and ran[,]” and the two officers pursued Lucas on foot. Lucas ran “right around the building, basically right to where the chase started[.]” Robey cornered him and Lucas surrendered, saying, “ ‘you got me. I’m cold and I’m tired.’ ” Defense counsel moved in limine to exclude Mulligan’s out-of-court statements to the police officers.

The court denied the motion and immediately proceeded to the trial on the merits. With the consent of counsel for both parties, the court agreed to accept Fowler’s testimony given during the ³¹¹ motion in limine hearing as if it were given during the merits trial. Mulligan was not present in court on the day of trial. Fowler testified that he did not know where she was and that the State never asked him to go find her.

Lucas testified in his own defense. Lucas testified that Mulligan was his girlfriend and that they had an argument when she accused him of cheating on her. According to Lucas, Mulligan told him to leave. When he went to get his things, Mulligan ran at him and knocked him down.

Lucas then got back up and pushed Mulligan off of him. He denied that he grabbed Mulligan around the neck, but indicated that “when [he] pushed her it was the upper part of her chest.” Lucas then “got [his] stuff and went out in the hallway and [sat] on the steps.” Lucas said that he could not leave because his car keys were in the apartment and that he sat outside “a good 15 to 20 minutes” before the police arrived. He testified that he ran from the police “[bjecause [he] didn’t believe [he] was getting locked up on some, — bull crap.” DISCUSSION The State contends that the Court of Special Appeals erred in reversing Lucas’s conviction and ordering a new trial because the admission of Mulligan’s statements into evidence did not violate his rights under the Confrontation Clause. The Confrontation Clause of the U.S. 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

In Crawford v. Washington, 541 U.S. 36, 53-54 , 124 S.Ct. 1354, 1365 , 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause barred the “admission of testimonial statements of 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.” In holding that the provision barred the admission of “testimonial” statements, the Supreme Court “fundamentally altered its Confrontation Clause jurisprudence^]” State v. Snowden, ³¹² 385 Md. 64, 78 , 867 A.2d 314, 322 (2005). It did so upon recognizing 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.” Crawford, 541 U.S. at 50 , 124 S.Ct. at 1363 . Before Crawford , an out-of-court statement’s admissibility turned on whether the unavailable witness’ statement has “adequate indicia of reliability—ie., falls within a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’ ” Crawford, 541 U.S. at 42 , 124 S.Ct. at 1359 (citing Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)). The Crawford Court rejected the Roberts test because it departed from the historical principles underlying the Confrontation Clause in two respects: First, it is too broad: It applies the same mode of analysis whether or not the hearsay consists of ex parte testimony.

This often results in close constitutional scrutiny in cases that are far removed from the core concerns of the Clause. At the same time, however, the test is too narrow: It admits statements that do consist of ex parte testimony upon a mere finding of reliability. Id. at 60 , 124 S.Ct. at 1369 . In Snowden , we reviewed the Crawford Court’s abrogation of Roberts : The Supreme Court found fault with the perceived unpredictability and subjectivity of the “indicia of reliability” test in Roberts .

In overruling Roberts , the Court stated: Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of ³¹³ reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. 385 Md. at 79 , 867 A.2d at 322 (quoting Crawford, 541 U.S. at 61 , 124 S.Ct. at 1370 ).

The Crawford Court declined to “spell out a comprehensive definition of ‘testimonial[,]’ ” leaving that effort “for another day[.]” 541 U.S. at 68 , 124 S.Ct. at 1374 . It indicated, however, that the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. The Court held, moreover, that the statements at issue in Crawford , recorded and “knowingly given in response to structured police questioning,” qualified as testimonial “under any conceivable definition.” Id. at 53 n. 4, 124 S.Ct. at 1365 n. 4. The Crawford Court provided characteristics of a testimonial statement and we reviewed these characteristics in Snow-den: The [Crawford] Court began by addressing what is “testimony”: “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.

Rather than articulate a singular standard, the Court offered three proposed formulations to exhibit the “core class” of what is “testimonial” for Confrontation Clause purposes: “[1] ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” [2] “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,”; [3] “statements that were made under circumstances which would lead an objective ³¹⁴ witness reasonably to believe that the statement would be available for use at a later trial.” 385 Md. at 80-81 , 867 A.2d at 323 -24 (quoting Crawford, 541 U.S. at 51-52 , 124 S.Ct. at 1364 (citations omitted)). We observed the common nucleus shared by each of the above formulations and the uniting theme underlying the Crawford holding: As the Court noted, these standards share a common nucleus in that each involves a formal or official statement made or elicited with the purpose of being introduced at a criminal trial.... Although these standards focus on the objective quality of the statement made, the uniting theme underlying the Crawford holding is that when a statement is made in the course of a criminal investigation initiated by the government, the Confrontation Clause forbids its introduction unless the defendant has had an opportunity to cross-examine the declarant. Id. at 81 , 867 A.2d at 324 (citing Crawford, 541 U.S. at 52 , 56 n. 7, 124 S.Ct. at 1364 ,1367 n. 7).

The Supreme Court elaborated on its definition of testimonial in the context of statements made during police interrogations in Davis v. Washington, 547 U.S. 813 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006). The Court consolidated two cases, Davis v. Washington, an appeal from the Supreme Court of Washington, and Hammon v. Indiana, an appeal from the Indiana Supreme Court, to “determine when statements made to law enforcement personnel during a 911 call or at a crime scene are ‘testimonial[.]’ ” Id. at 817, 819, 821 , 126 S.Ct. at 2270, 2271-72, 2273 . The Court observed that in Crawford , it set forth “ ‘[v]arious formulations’ of the core class of ‘testimonial’ statements” and that among these “were’ [statements taken by police officers in the course of interrogations[.]’ ” Id. at 822, 126 S.Ct. at 2273 (citing Crawford, 541 U.S. at 52, 53 , 124 S.Ct. at 1354 )(internal quotation marks omitted). Acknowledging that it did not define the term “ ‘interrogation!,]’ ” the Court recognized that it had to “determine more precisely which police interrogations produce testimony.” Id.

The Court then ³¹⁵ formulated the following rubric for classifying statements in response to police interrogation: 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 , 126 S.Ct. at 2273-74 (footnote omitted). The Supreme Court applied this rubric to the two consolidated cases on appeal.

It began by analyzing the interrogation at issue in the Washington case and concluded that it did not produce testimonial statements. In Davis v. Washington, the defendant, Adrian Davis, was convicted of violating a domestic no-eontact order. The complainant, Michelle McCottry, called a 911 emergency operator, and the operator answered, but the connection terminated before McCottry spoke. The 911 operator reversed the call and McCottry answered.

The following exchange ensued: “911 Operator: Hello. “Complainant: 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. ³¹⁶ “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.” Id. at 817-18 , 126 S.Ct. at 2271 (citation omitted). 2 The police arrived within four minutes of the call. McCottry was in a “shaken state,” had “ ‘fresh injuries on her forearm and her face,’ ” and was engaging in “ ‘frantic efforts to gather her belongings and her children so that they could leave the residence.’ ” Id. at 818 , 126 S.Ct. at 2271 (citations omitted). ³¹⁷ The Court concluded that “the circumstances of McCottry’s interrogation objectively indicat[ed] its primary purpose was to enable police assistance to meet an ongoing emergency.” Davis, 547 U.S. at 828 , 126 S.Ct. at 2277 . The Court observed, first, that “the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establish] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” Id. at 827 , 126 S.Ct. at 2276 .

The Court then distinguished McCottry’s interrogation responses from the testimonial statements in Crawford ,: The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis , McCottry was speaking about events as they were actually happening, rather than “describing] past events[.]” Sylvia Crawford’s interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry’s call was plainly a call for help against bona fide physical threat.

Third, the nature of what was asked and answered in Davis , again 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. 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. And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe. ³¹⁸ Id., 126 S.Ct. at 2276-77 (citations omitted, emphasis in original).

McCottry’s statements did not violate Davis’s right of confrontation because “[s]he simply was not acting as a witness; she was not testifying. What she said was not ‘a weaker substitute for live testimony’ at trial[.]” Id. at 828 , 126 S.Ct. at 2277 (citation omitted, emphasis in original). 3 The Court then analyzed the statements at issue in the second case, Hammon v. Indiana, and held that they were testimonial. Unlike the Washington case, the task of “[d]etermining the testimonial or nontestimonial character of the statements” in Hammon was much easier because “they were not much different from the statements [the Court] found to be testimonial in Crawford . ” Davis, 547 U.S. at 829 , 126 S.Ct. at 2278 . In Hammon, police officers responded late one evening “to a ‘reported domestic disturbance’ at the home of Herschel and Amy Hammon.” Id. at 819 , 126 S.Ct. at 2272 (citation omitted).

The Court recounted the facts as follows: [The officers] found Amy alone on the front porch, appearing “ ‘somewhat frightened,’ ” but she told them that “