Opinion
No. WD 64501
November 8, 2005.
In the Circuit Court of Boone County, The Honorable Clifford Eugene Hamilton, Jr., Judge.
Before Victor C. Howard, P.J., James M. Smart, Jr., and Thomas H. Newton, JJ.
Lamont Kemp appeals the denial of his motion for new trial on his convictions for felonious restraint, § 565.120, and unlawful use of a weapon, § 571.030.1(4). Kemp raises three points on appeal. All of the points are related to the admission of out-of-court statements made by the alleged victim, Jackie Washington, who was not present at trial.
All statutory references are to the Revised Statutes of Missouri, 2000, unless otherwise indicated.
Factual and Procedural Background
On the morning of September 11, 2003, at around 8:30 a.m., a woman knocked on the door and screamed for help at the residence of Michael and Laura Johnson in Columbia. Mrs. Johnson, who was awake at the time, woke her husband. He quickly dressed and went to the door. Because the screaming woman was gone, he left the house trying to find where the woman had gone. Shortly thereafter, Mr. Johnson came upon Jackie Washington in the street. She was half dressed with only a nightgown covering her below the waist. Ms. Washington was frantic, crying, and shaking. She was having trouble breathing while trying to run and she kept falling while attempting to run. According to Mr. Johnson's testimony, Ms. Washington stated on the street "that her boyfriend had been holding her hostage in her apartment, at gunpoint, and wouldn't let her leave. And this was all, the whole night that he wouldn't let her leave."
Mr. Johnson then took Ms. Washington back to the Johnson's apartment. Mrs. Johnson had already called 911. When the 911 call begins, Ms. Washington and Mr. Johnson are in the front yard, with Mr. Johnson trying to calm Ms. Washington, while Mr. Johnson is on the phone. When they entered the apartment, Mrs. Johnson was still on the phone with the 911 operator. The operator then began to ask questions of Ms. Washington through Mrs. Johnson. Ms. Washington never spoke directly to the 911 operator, although her words could be heard through the telephone and on the 911 recording.
In the 911 conversation, the operator solicited, inter alia, the name of the victim, Jackie Washington, and the name of Ms. Washington's boyfriend, Lamar Kemp, and was told that Kemp had confined Washington all night while pointing a gun at her. Additional questions asked during the phone call were related to whether Ms. Washington needed an ambulance, the addresses in question, the description of the gun, the possible presence of other guns and other weapons in the house, the possible presence of other people in the house, the presence of a dog or other animals in the house, whether there was drug usage involved, whether Mr. Kemp would have fled the house or would still be there, whether he could be seen on the porch of the residence (from the Johnsons' apartment), the fact that officers were on their way in response to the emergency, and similar items. Ms. Washington never handled the phone herself or talked directly to the 911 operator. Her voice, however, could be heard on the recording of the 911 tape as she responded to the questions relayed to her by Mrs. Johnson.
The following are the only excerpts from the approximately ten minute phone call that were admitted in evidence:
[Mrs. Johnson]: What's your name, ma'am?
Woman: Jackie
[Mrs. Johnson]: Huh?
Woman: Jackie
[Mrs. Johnson]: Jackie
Woman: Washington
[Mrs. Johnson]: Washington
911: What's his name, what's the boyfriend's name?
[Mrs. Johnson]: What's your boyfriend's name?
Woman: Lamont Kemp
[Mrs. Johnson]: Lamar Kemp?
* * *
Woman: . . . He got this gun in the back of his pocket and he (inaudible)[Mr. Johnson]: What type of gun did he have?
911: Did he have her tied up, or . . .?
[Mrs. Johnson]: Did he have you tied up or just locked in the bathroom?
Woman: No he had, he had the gun on me, he had me sittin' down with him like this while he's wavin' the gun around talkin' about he's seein' people. This been goin' on all night.[Mrs. Johnson]: Did you hear that?
911: Yeah.
[Mrs. Johnson]: OK.
The discussion corresponding to the first excerpt occurred approximately two minutes into the start of the phone call. The discussion corresponding to the second excerpt occurred right at five and one-half minutes into the conversation. The total phone conversation extended beyond ten minutes. In the first couple of minutes of the conversation, Ms. Washington can be heard sobbing.
Several officers responded to the call and went to Ms. Washington's residence believing that Kemp was still inside. The officers attempted to make contact with Kemp by knocking at the door, knocking on the side of the house, and calling the residence. After about an hour or two, more officers were sent to the residence to assist. These included twenty tactical officers and fifteen crisis negotiators. Eventually contact was made with Kemp inside the residence, and he came out of the house. In the house, a loaded .40 caliber Smith Wesson and an unloaded .22 caliber handgun were found in the trash can. Also, a loaded .357 revolver was found in the house. All three guns had been stolen four days earlier from an office in Columbia.
Kemp was charged by indictment as a prior and persistent offender with felonious restraint, § 565.120, unlawful use of a weapon, § 571.030.1(4), and receiving stolen property, § 570.080. The State was unable to subpoena Ms. Washington to testify at trial.
The first jury trial began on March 3, 2004. A mistrial was declared, and the trial was rescheduled for March 12, 2004. Crawford v. Washington, 541 U.S. 36 (2004), was handed down by the United States Supreme Court on March 8, 2004.
The jury trial was conducted, and a guilty verdict was returned on all three counts. Kemp filed a motion for a new trial on all three counts. The motion was denied for counts I and II but granted for count III (receiving stolen property). Before a new trial could be conducted, the State entered a nolle prosequi for count III. This appeal follows.
Standard of Review
The trial court has broad discretion to admit or exclude evidence during trial and will only be reversed upon a showing of a clear abuse of discretion. State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000). "A trial court will be found to have abused its discretion when a ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Rutter, 93 S.W.3d 714, 729 (Mo. banc 2002). Furthermore, "[w]e review trial court decisions regarding the admissibility of evidence for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Mozee, 112 S.W.3d 102, 105 (Mo.App. 2003).
Analysis
Kemp raises three points on appeal. First, the admission of statements made by Ms. Washington to the 911 operator violated the Confrontation Clause. Second, the statements made by Ms. Washington to Mr. and Mrs. Johnson also violated the Confrontation Clause. Finally, all of the statements Ms. Washington made to both the Johnsons and the 911 operator were inadmissible because they did not fall within the excited utterance exception to the hearsay rule.
I.
Kemp's first point on appeal argues that Ms. Washington's statements to the 911 operator were "testimonial" in nature and violated his confrontation right. He relies upon the United States Supreme Court case Crawford v. Washington, 541 U.S. 36 (2004), to support his argument.
Crawford v. Washington, 541 U.S. 36 (2004), was handed down four days prior to the start to Kemp's trial.
In Crawford, the defendant was charged with first-degree assault after he stabbed a man who allegedly tried to rape his wife. The defendant and his wife, who was present at the time of the stabbing, gave separate interviews to police. Crawford, 541 U.S. at 38-40. The wife's account of the altercation differed from her husband's, particularly in regard to her denial that the man had drawn a weapon before her husband stabbed him. The wife refused to testify at her husband's trial on grounds of marital privilege. The State introduced, over objection, the tape recorded statement the wife made to interrogators. Defendant was convicted. Id. at 40-41. Ultimately, after reversal and reinstatement in the state court system, the United States Supreme Court granted certiorari to consider whether the State's use of the wife's statement violated the Confrontation Clause. Id. at 42. The Court held that it did. Id. at 68-69. Central to the Court's holding was a recognition that the formality of wife's statement to interrogators was such that it was "testimonial" in nature. Id. at 61.
In Crawford, the Supreme Court failed to provide a comprehensive definition of "testimonial," but stated 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. at 68. Further, the Supreme Court failed to provide a definition for interrogation other than the colloquial meaning. Id. at 53 n. 4.
The statements at issue in this case, those made to a 911 operator through Mrs. Johnson, do not directly fall into any of the specifically mentioned four categories of the term "testimonial" and differ greatly from the facts in Crawford. In Crawford, statements given in response to structured police questioning qualified as interrogation. Id. The statements in this case were obtained right after Ms. Washington was running down the street half-naked and in a hysterical state. Only a few minutes had passed from the time Ms. Washington was contacted by Mr. Johnson until she made the statements to the 911 operator that included Kemp's name and that he had a gun. These statements appear to have been made for the purpose of obtaining help and police assistance, not for the purpose of aiding a police investigation and prosecution.
Even if the 911 operator might be considered a government officer, in this case, the 911 operator was not filling the role of an investigator. The operator was acting as a source of emergency help, not as a detective. All of the questions asked by the 911 operator were designed to gain an understanding of the nature of the emergency, the identities and locations, and possible risks to officers who would respond to the scene. There is no indication that any party contemplated that the contents of the call would be used in court, or that the 911 operator was attempting to build a case for prosecution.
Whether a 911 call is "testimonial" would necessarily be fact-specific. Most state and federal courts have held that the 911 calls which they considered were not testimonial within the meaning of Crawford. See, e.g., State v. Davis, 613 S.E.2d 760,768-72 (S.C.App. 2005) (summarizing numerous cases addressing whether 911 calls are testimonial). We need not engage in an extensive analysis in this case. Not only was there no indication that here there was an attempt to conduct an interrogation for prosecution purposes, but also we have the fact that the trial court extensively redacted the tape to leave only the rudimentary elements of the call, which also largely overlapped with the spontaneous statements made to Mr. Johnson prior to the phone call when he contacted the hysterical Ms. Washington on the street. For these reasons, we conclude that an extensive Crawford analysis is unnecessary, and that Crawford is inapplicable in this case.
II.
Kemp's second point argues that the admission of Ms. Washington's statements to Mr. and Mrs. Johnson were testimonial and violated his confrontational right. Again, Kemp relies upon Crawford to argue that because the 911 operator suggested the questions to ask and Ms. Washington's statements were in response to those questions, they were testimonial responses to interrogation. We disagree. Even under the broadest reading of Crawford, we do not believe the Supreme Court would consider statements made to neighbors responding to an emergency to fall within the category of statements prohibited under the Confrontation Clause. See Crawford, 541 U.S. at 53.
III.
Kemp's third point argues that Ms. Washington's statements to Mr. and Mrs. Johnson were hearsay and did not fall within the excited utterance exception to the hearsay rule. The statements were made to Mr. and Mrs. Johnson separately and will be examined individually.
The excited utterance exception to the hearsay rule applies when a statement results from a "startling or unusual occurrence sufficient to overcome normal reflection" and the "declaration is a spontaneous reaction to the startling event." Bynote v. Nat'l Super Markets, Inc., 891 S.W.2d 117, 122 (Mo. banc 1995). "The essential test for admissibility of a spontaneous statement or excited utterance is neither the time nor place of its utterance but whether it was made under such circumstances as to indicate it is trustworthy." State v. Strong, 142 S.W.3d 702, 718 (Mo. banc 2004) ( citing State v. Van Orman, 642 S.W.2d 636, 639 (Mo. 1982)). There are four factors to consider in deciding whether or not an excited utterance exists: "(1) the time between the startling event and the declaration, (2) whether the declaration is in response to a question, (3) whether the declaration is self-serving, and (4) the declarant's physical and mental condition at the time of the declaration." Bynote, 891 S.W.2d at 122. "While no one factor necessarily results in automatic exclusion, all should be considered in determining whether the declaration was the result of reflective thought." Id.
In this case, the statements Ms. Washington made to Mr. Johnson were made when he found her running down the street, half-naked, upset, crying, and frantically looking for help. According to Mr. Johnson's testimony, she said "that her boyfriend had been holding her hostage in her apartment, at gunpoint, and wouldn't let her leave. And this was all, the whole night that he wouldn't let her leave." The time between the startling event and her statement was obviously relatively short, as she had, from all appearances, just escaped from her boyfriend who lived across the street from the Johnson's home. Second, her statement does not appear to be the product of an inquisitorial question, but rather a free flowing response to the prospect of help arriving. Third, the statement is not self-serving, as Ms. Washington is clearly not attempting to get anything out of the situation other than help. Finally, Ms. Washington was not in a calm mental or physical state when she made the statement to Mr. Johnson. Mr. Johnson described her as frantically running down the street, barely clothed, while tripping and crying. She did not make her remarks after reflective thought. Under these conditions, the statement made to Mr. Johnson on the street could not be characterized as anything other than an excited utterance, which clearly falls within the exception to the hearsay rule.
The statements Ms. Washington made to Mrs. Johnson inside the Johnson's home are not as clear cut, but also, we believe, could reasonably be considered to fall within the excited utterance exception to the hearsay rule. There was a longer period of time from the event itself, but only a few minutes had elapsed between the time Ms. Washington was running down the street and the time of the 911 call. The statements in the Johnson home were in response to questions, rather than being purely spontaneous, but those statements were consistent with the first statements to Mr. Johnson. By all indications, Ms. Washington's mental state was still affected by hysteria. Mrs. Johnson was holding the phone in order to assist Ms. Washington, rather than turning the phone call directly over to Ms. Washington. The remarks were not self-serving, as Ms. Washington only intended the statements to help police respond to the call. Ms. Washington was in the house of people she barely knew, poorly clothed, and had obviously been extremely stressed by the past few hours of her life. The declarations do not appear to have been the result of reflective thought. We believe it was not an abuse of discretion to admit the statements made to Mrs. Johnson inside the Johnson's house as statements within the excited utterance exception to the hearsay rule.
Point denied.
Conclusion
The judgment of the trial court is affirmed.
Howard and Newton, JJ., concur.