Confrontation and Hearsay in a Robbery Prosecution After the Victim's Death

The 911 call is likely admissible. Hearsay analysis: the clerk's statements were made while the robbery was ongoing and describe the perpetrator and weapon. They qualify as an excited utterance because the clerk was under the stress of a startling event, and the description of the man taking the cash drawer is also a present sense impression. More importantly, the Confrontation Clause does not bar the call. Under the governing distinction, statements are testimonial when their primary purpose is to establish past events for later prosecution; statements made during an ongoing emergency to enable police to resolve the emergency are nontestimonial. A 911 call reporting a man with a gun who has just taken the cash drawer is made to deal with an immediate threat, not to create a trial record. The clerk's later death does not change that. The call is therefore admissible as nontestimonial hearsay under an exception. The court should admit it, though the defense may argue that the call's later details became testimonial if the emergency had ended; on these facts the call was made during the robbery.

The photo identification is likely inadmissible. The clerk is unavailable because she died, so the prosecution cannot call her to testify. Hearsay: a prior identification is admissible substantively under Rule 801(d)(1)(C) only when the declarant testifies and is subject to cross-examination. That condition is not met. The prosecution might argue the identification is nontestimonial, but it was made six weeks after the robbery from a photo array administered by police during an investigation. Its primary purpose was to identify a suspect for prosecution, not to respond to an ongoing emergency. It is therefore testimonial. Because Defendant had no prior opportunity to cross-examine the clerk and her absence is not due to Defendant's wrongdoing, the Confrontation Clause bars admission of the testimonial identification. The court should exclude the photo-array identification unless some independent exception applies, and none appears on these facts.

Mark's statement is not admissible against Defendant. It is hearsay because it is an out-of-court statement offered to prove that Defendant held the gun and participated in the robbery. It does not fall within a statement-against-interest exception as to Mark because the prosecution is offering it against Defendant, not to exonerate Mark, and there is no showing that Mark is unavailable in the relevant sense or that the statement is reliable as to Defendant. A co-conspirator statement might be admissible if made during and in furtherance of the conspiracy, but a stationhouse confession to police after the robbery is not in furtherance of the conspiracy. Under Bruton, admitting a nontestifying co-defendant's confession that expressly implicates Defendant violates the Confrontation Clause, even with a limiting instruction. Redaction can cure the problem only if the statement does not incriminate Defendant on its face and the jury would not infer the redacted reference; 'Defendant held the gun' cannot be redacted without destroying its meaning. Because Mark will invoke his privilege and will not be cross-examined, the statement must be excluded in a joint trial.