The 911 Call, the Dying Victim, and the Officer's Question
At 9:15 p.m., Victor called 911 from a convenience store parking lot. The recording captures him breathing heavily and saying, 'A man in a red hoodie shot me. His name is Marcus. I'm bleeding bad.' The dispatcher asked, 'Where are you?' and Victor answered. Officers arrived eight minutes later. Victor was lying on the ground, bleeding from the abdomen. Officer Reyes asked, 'Who shot you?' Victor said, 'Marcus. He ran that way.' Victor died at the hospital two hours later. Marcus is charged with murder. Victor is unavailable. The prosecution offers (1) the 911 recording and (2) Officer Reyes's testimony about Victor's statement. Marcus objects under hearsay and the Confrontation Clause. The trial court admits both. Marcus appeals. The state argues that both statements are excited utterances and that the officer's question was necessary to catch a fleeing felon.
1. Is the 911 recording admissible against Marcus?
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Yes. The recording contains Victor's own statements, offered for their truth, so hearsay analysis is required. The statements qualify as excited utterances because Victor was reacting to a startling event, a shooting, while bleeding heavily and breathing hard, with no time to reflect. They also qualify as present sense impressions of the event and his condition. Under the Confrontation Clause, the key question is whether the statements were testimonial. A 911 call made to obtain emergency assistance during an ongoing emergency is generally nontestimonial. Victor was not acting as a witness preparing a case; he was asking for help while wounded. The dispatcher's question about his location was necessary to respond to the emergency. The recording therefore does not violate Crawford. The trial court properly admitted it.
2. Is Officer Reyes's testimony about Victor's statement admissible?
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No. The statement is hearsay if offered for its truth, and although the state may argue excited utterance, the Confrontation Clause bars it. By the time Officer Reyes arrived, the emergency was no longer the same ongoing 911 emergency. Victor was on the ground, officers were present, and Reyes asked, 'Who shot you?' The primary purpose of that question was to establish what happened and identify the perpetrator for prosecution, not to meet an ongoing threat. That makes Victor's answer testimonial. Victor is unavailable because he died, but Marcus had no prior opportunity to cross-examine him. An excited-utterance exception does not satisfy Crawford. The fleeing-felon rationale does not create a confrontation exception; if officers needed to pursue a fleeing suspect, that is an exigency for action, not a license to use testimonial statements at trial. The officer's testimony should be excluded.
3. Would the result change if Victor had said, 'He still has the gun and is outside'?
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It could. The Confrontation Clause inquiry asks whether the primary purpose of the conversation was to meet an ongoing emergency or to establish past facts for prosecution. A statement that the shooter still has a gun and is outside the store describes a continuing threat and is directed at immediate safety. If Victor said that in response to a question reasonably aimed at locating an armed suspect, the statement would likely be nontestimonial and admissible, assuming it also falls within a hearsay exception such as excited utterance. The fact that Victor identified Marcus earlier would not automatically make this separate statement testimonial. But if the officers had already secured the scene and were asking only to build a case, the statement would be testimonial. The timing, the officers' purpose, and whether the threat was still active control the result.