Excited Utterance, Bodycam Statements, and the Confrontation Clause
Defendant is tried in Suffolk Superior Court for assault and battery with a dangerous weapon and strangulation. The victim, Dana, began dating the defendant six months earlier. At 9:15 p.m., Dana's neighbor, Priya, called 911 after hearing screams from Dana's apartment. On the 911 recording, Dana can be heard crying and saying, 'He punched me and put his hands around my neck. He has a knife.' Police arrived at 9:22 p.m.; the defendant was gone. At 9:40 p.m., Officer Ruiz recorded a bodycam interview with Dana in the apartment. Dana, still shaking and crying, said, 'It was Marcus. He hit me twice and choked me.' The defendant was arrested the next day. Dana does not appear at trial and cannot be found. Priya testifies that she heard screams and saw a man later identified as the defendant leave the building. The prosecution offers the 911 recording and the bodycam recording.
1. Is the 911 recording admissible?
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The 911 recording is admissible. Dana's statements are hearsay because they are offered to prove that the defendant punched and choked her. But they fall within the spontaneous-utterance (excited-utterance) exception: the statements were made while Dana was crying and under the stress of a startling event, and before she had time to reflect or contrive. Priya can authenticate the recording and describe the screams. The Confrontation Clause does not bar the recording. Under Davis v. Washington, a 911 call made to obtain emergency aid while a crime is ongoing is nontestimonial. Dana was describing a present threat-the defendant had just attacked her and had a knife. The primary purpose of the call was to get help, not to create evidence for trial.
2. Is the bodycam recording admissible against the defendant?
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The bodycam recording is likely inadmissible. It may satisfy the spontaneous-utterance exception because Dana was still shaking and crying 25 minutes later, but the Confrontation Clause is a separate hurdle. By 9:40 p.m., the defendant had left, police had arrived, and the scene was secured. Officer Ruiz's bodycam interview was an investigative interrogation aimed at establishing what happened and identifying the attacker. Under Crawford and Davis, statements made in response to such questioning are testimonial. Dana is unavailable and the defendant had no prior opportunity to cross-examine her. The excited-utterance exception does not cure a Confrontation Clause violation. The recording should therefore be excluded unless the prosecution can show that the primary purpose was still an ongoing emergency, which is unlikely on these facts.
3. If the bodycam recording is admitted and the defendant is convicted, what standard of review applies to the Confrontation Clause claim?
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The Confrontation Clause claim is reviewed de novo because it is a constitutional question. The trial court's evidentiary ruling on the hearsay exception is reviewed for abuse of discretion, but the ultimate question whether a statement is testimonial is reviewed independently. If the bodycam recording was admitted erroneously, the conviction can stand only if the error was harmless beyond a reasonable doubt. That is a high standard. Dana is the only eyewitness to the choking and the only person who identified the defendant as the attacker in the recording; Priya saw a man leave but did not see the assault. If the bodycam supplied the only direct identification and account, the error is likely not harmless, and the conviction should be reversed.