Excited utterances and the Confrontation Clause in Florida (911 calls)
In a new Florida evidence case, the 5th District Court of Appeal has discussed 911 calls, excited utterances, and the Confrontation Clause.
In Raymond v. State, 43 Fla. L. Weekly D2460a (Court Case No. 5D17-2759), Raymond was charged with attempted second degree murder of his mother. Allegedly, he fired a shotgun over her head while she was in her bedroom. She called 911, and was "distraught . . . crying" and told the 911 operator what happened and "he's going to kill me . . . hurry . . . please hurry."
Officers arrived on scene - Raymond was gone, and his mother was "crying hysterically and shaking uncontrollably" as she relayed the incident.
ISSUE: did admitting the mother's statements in the 911 call and to the officers on scene violate the Confrontation Clause, and were they improperly admitted hearsay?
HELD AS TO 911 CALL: not testimonial, as the statements described events "as they were actually happening" in order to assist law enforcement. The 911 call statements met the excited utterance exception to hearsay under 90.803(2) (made regarding a startling event before there was time to contrive or misrepresent while the person was in under the stress or excitement caused by the event).
HELD AS TO STATEMENTS TO OFFICERS ON SCENE: testimonial, as the statement occurred after the threat ceased and were the result of police interrogation intended to capture historical information.
REVERSED: Raymond's mother did not testify and was not "ever cross-examined" thus the Confrontation Clause was violated. The error was not harmless, as the state could not have established beyond a reasonable doubt Raymond's guilt for second-degree murder in the absence of the improperly admitted testimony.
*EDITOR'S TAKEAWAY NOTE: Remember your Crawford analysis:
In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court discussed in depth the history of the Confrontation Clause. The Court held that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands [witness] unavailability and a prior opportunity for cross-examination.” Id. at 68. The Court left open the precise qualities of testimonial statements but provided that “[w]hatever else the term covers, it applies at a minimum to . . . police interrogations.” Id.
In two consolidated cases, Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006), the Court defined the nature of testimonial statements. Both cases involved statements officers obtained in the course of their investigations. The Court explained:
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.
Id. at 822.