Tuesday, December 19, 2006

CA: statement made by assault victim in response to officer in "emergency" setting is not "testimonial" hearsay

People v Bradley, 2006 NY Slip Op 09501 [available here]

Responding to a 911 report of an assault, an officer arrived at "the door of an apartment and was met there by [the victim], who was visibly shaken, had blood on her face and clothing, was bleeding profusely from one hand, and walked with a noticeable limp." (Bradley, 2006 NY Slip Op 09501.) The officer "asked her what happened", and the victim told the officer that "her boyfriend threw her through a glass door." (Id.) The Court of Appeals held that the victim's response to the officer's question was not testimonial hearsay under Crawford v Washington and its more recent progeny because the "primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency" and was not the product of a structured police questioning designed to generate evidence for a criminal prosecution. (Id., citing Davis v Washington, 126 S Ct 2266 [2006] [bracketed material in original].) After first discussing the Supreme Court's recent decision in Hammon (statements were considered "testimonial" when made by assault victim during detailed interview conducted after the crime was completed and the situation was secure) and Davis (statements made to 911 operator describing ongoing assault were not testimonial), the Court held that the statements at issue fell closer to the Davis "ongoing-emergency"-type scenario and were thus not testimonial:

The facts of this case are between those in Davis and Hammon: [the victim] was neither describing a present event as it occurred, nor responding to detailed questioning in a calm, secure setting. But under the test the Supreme Court stated in Davis, [the victim's] statement was clearly not testimonial. It was "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency."

When [the officer], responding to a 911 call, arrived at [the victim's] door and was met by an emotionally upset woman smeared with blood, his first concern could only be for her safety. His immediate task was to find out what had caused the injuries so that he could decide what, if any, action was necessary to prevent further harm. Asking [the victim] "what happened" was a normal and appropriate way to begin that task, and the officer promptly entered the apartment, as an officer dealing with an emergency would be expected to do.

(Id. at __.)

The Bradley decision is a relatively straight-forward application of the federal confrontation clause as re-interpreted by Crawford, Davis, and Hammond. Of particular interest is that the Bradley Court, while acknowledging that the appellant was basing his arguments on both the federal Constitution and the New York Constitution and its confrontation clause, also noted that appellant "does not suggest that the two be interpreted differently, and we therefore accept the holdings of Crawford and Davis as the basis for our decision under both Constitutions." (Id. at __.) It would be interesting to see what the Court of Appeals would do with an argument that the State Constitution affords greater protections under its Confrontation Clause than does the federal Constitution, and therefore the definition of "testimonial" should be broader under the State Constitution. The Court of Appeals might be tempted to set its own (broader) definition of "testimonial" as a practical matter, if for no other reason than to bring stability to this area of law and insulate the courts of New York from the periodic disruptive refinements of the "testimonial" standard that emanate from the United States Supreme Court.