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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JOSEPH L. ANDERSON, | ) |
| ) Court of Appeals No. A-8064 | |
| Appellant, | ) Trial Court No. 3AN-00-10216 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2113 - August 3, 2007] |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Dan A. Hensley, Judge.
Appearances: Colleen A. Libbey, Libbey Law
Offices, LLC, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes and
Talis J. Colberg, Attorneys General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
In Crawford v. Washington,1 the United States Supreme
Court held that the Confrontation Clause of the United States
Constitution prevents the government from introducing testimonial
hearsay against a criminal defendant unless the hearsay declarant
is available to be cross-examined at trial or unless the
government proves that the hearsay declarant is unavailable, and
the defendant previously had a fair opportunity to cross-examine
the declarant.2
Later, in Davis v. Washington,3 the Supreme Court held
that an out-of-court statement to a police officer is non-
testimonial if the circumstances surrounding the making of the
statement objectively indicate that the primary purpose of the
statement was to enable the police to respond to an ongoing
emergency.4
In the present case, the State prosecuted Joseph
Anderson for assault. At Andersons trial, the State introduced
hearsay testimony concerning a statement that the victim of the
assault made to the first police officer who arrived on the
scene. The victim did not testify at Andersons trial; because of
this, Anderson contends that the introduction of this hearsay
testimony violated his right of confrontation.
The underlying facts are fairly straightforward.
Anchorage Police Officer Pamela Nelson was dispatched to the
scene of a reported assault. When Officer Nelson arrived, a
woman informed her that a man (later identified as Carroll
Nelson) was injured in a building across the street. The woman
then led Officer Nelson across the street to an apartment. In
the apartment, Officer Nelson saw a man lying on the floor,
covered with what appeared to be a piece of carpet. Officer
Nelson testified that she asked the man, What happened? She
testified that the man told her that Joe had hit him with a pipe.
Anderson raised an objection to the introduction of
this hearsay statement before trial. The trial judge concluded
that, given the circumstances, the victims statement fell within
the hearsay exception for excited utterances.5 We upheld that
evidentiary ruling in our previous decision in this case.6
However, the conclusion that the hearsay was admissible as an
excited utterance does not resolve the issue of whether the
hearsay was testimonial for purposes of Crawford and Davis. We
conclude that the victims statement was non-testimonial because
the circumstances surrounding the making of that statement
objectively indicate that the primary purpose of Officer Nelsons
question was to enable her to respond to an ongoing emergency.
The Supreme Courts decisions in the companion
cases of Davis v. Washington and Hammon v.
Indiana
The Confrontation Clause of the Sixth Amendment to the
United States Constitution provides that [i]n all criminal
prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him[.]
In Crawford v. Washington,7 the Supreme Court held that
the Confrontation Clause precludes admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.8 However, Crawford did not
provide a firm definition of testimonial hearsay although the
Court declared that statements made by a witness during a formal
police interrogation would clearly be testimonial.9
Two years later, in Davis v. Washington (and the
companion case of Hammon v. Indiana),10 the Supreme Court
addressed two instances where the government relied on hearsay
statements that were elicited when police officers responded to
reports of domestic assault. In both Davis and Hammon, the
victims of the assaults did not testify at the defendants trials,
so the admission of the hearsay statements raised issues under
the Confrontation Clause.
In Davis, the victim had called 911 to report that her
boyfriend, Adrian Davis, was assaulting her. The 911 operator
(whom the court assumed to be a police agent) asked the victim,
Whats going on?, and the victim replied, Hes here jumpin on me
again. The 911 operator then asked if Davis had any weapons, and
the victim replied, No. Hes usin his fists. At that point,
Davis ran out the door. The operator then asked the victim other
questions designed to help the police locate and identify
Davis.11
The victim did not testify at Daviss trial. Over
Daviss objection based on the Confrontation Clause the trial
court admitted the recording of the victims exchange with the 911
operator. The jury found Davis guilty of felony violation of a
no-contact order.12 The Supreme Court held that the victims out-
of-court statements captured on the 911 recording were not
testimonial for purposes of the Confrontation Clause.13 The
Court explained that even a witnesss statements made in the
course of police interrogation may nevertheless be non-
testimonial if:
circumstances objectively indicat[e] that the
primary purpose of the interrogation is to
enable police assistance to meet an ongoing
emergency. [On the other hand, statements to
police officers] are testimonial when the
circumstances objectively indicate that there
is no such ongoing emergency, and that the
primary purpose of the interrogation is to
establish or prove past events potentially
relevant to later criminal prosecution.[14]
The Court then pointed to several
factors which led it to conclude that the
hearsay statements in Davis were not
testimonial. First, the victim was speaking
about events as they were actually happening,
rather than describ[ing] past events.15
Second, the victim was facing an ongoing
emergency, and her call to the 911 operator
was plainly a call for help against a bona
fide physical threat.16 Third, the nature of
what [the 911 operator] asked and [what the
victim] answered ... , viewed objectively,
was such that the elicited statements were
necessary to be able to resolve the present
emergency, rather than simply to learn (as in
Crawford) what had happened in the past.17
Finally, the victims statements were made in
a significantly less formal setting than the
hearsay statements given during the station
house interview in Crawford.18
In contrast, the Supreme Court
(applying the same test) found the hearsay
statements in Hammon to be testimonial.
In Hammon, two police officers
responded to a reported domestic dispute at
the Hammon household. When they arrived,
they found the victim, Amy Hammon, alone on
the front porch. She appeared somewhat
frightened, but she told the officers that
nothing was wrong. When the officers entered
the home, they saw that the gas heating unit
was partially damaged. The officers then
spoke with Amy Hammons husband, Hershel
Hammon, who told the officers that there had
been an argument, but that the argument never
became physical, and everything was fine. At
this point, one officer remained in the
kitchen with Hershel Hammon, while the other
went to speak to Amy Hammon alone. During
the ensuing interview, Amy Hammon described a
physical altercation between her and her
husband that had occurred earlier in the
evening. The officer had Amy Hammon
summarize her statement in an affidavit.19
Amy Hammon did not testify at
Hershel Hammons trial for domestic battery
and violating his probation. Over Hershel
Hammons repeated objections, the police
officer who had interviewed Amy Hammon at the
scene described the statements that Amy
Hammon had made during their conversation,
and authenticated Amy Hammons affidavit.20
Hershel Hammon was found guilty on both
charges.21
The Supreme Court concluded that,
under these circumstances, Amy Hammons
statements were testimonial and thus the
admission of these statements violated
Hershel Hammons right of confrontation.22
The Court emphasized that the police officers
interrogation of Amy Hammon was aimed at
eliciting a description of past, potentially
criminal conduct, and that the interrogation
took place under circumstances where there
was no indication of an ongoing emergency.23
The Court emphasized that the officer who
questioned Amy Hammon was not seeking to
determine ... what is happening, but rather
what happened.24
In further explaining the differing
results in these two cases, the Supreme Court
noted a series of factors that distinguished
Davis from Hammon. First, the victim in
Davis was alone, unprotected by the police,
and in immediate danger; in contrast, the
victim in Hammon was in the presence of
police officers and was protected from
immediate danger.25 Second, the victim in
Davis was speaking in the present tense,
while the victim in Hammon gave the police a
narrative of past events ... delivered at
some remove in time from the danger she
described.26 And third, the victim in Hammon
executed an affidavit for the specific
purpose of recording past events for use in
an official investigation.27
Why we conclude that the
hearsay statement in
Andersons case was not
testimonial
The evidence in Andersons case
shows that, around 2:00 in the morning of
December 1, 2000, Zonyua Robinson called 911
from the Arctic Tern Inn. Anchorage Police
Officers Pamela Nelson and Dwayne Jones
arrived at the Arctic Tern approximately ten
minutes later.
Immediately after arriving at the
Arctic Tern, Robinson flagged down Officer
Nelson. Robinson was frantic and had a
bloody, cut lip. Robinson insisted that
another person was hurt and needed help.
Robinson led the two officers to an apartment
across the street. At this point, the
officers did not know what the situation was
in the apartment, or why someone needed aid.
When the police officers and
Robinson got to the apartment, Robinson began
yelling for Carroll, and she told Officer
Nelson that she knew that Carroll Nelson had
been hurt. As the two officers entered the
apartment, they walked past Anderson. Officer
Jones remained with Anderson, while Officer
Nelson accompanied Robinson to the back of
the apartment.
When they reached a small room in
the back of the apartment, Officer Nelson saw
Carroll Nelson lying in a fetal position,
wrapped in something resembling a discarded
piece of carpet. Robinson asked Carroll
Nelson if he was all right, and Carroll
Nelson responded that he was hurt and having
a hard time breathing. When Officer Nelson
removed the material covering Carroll Nelson,
she saw that Carroll Nelson was shirtless and
that he had several obvious bruises on his
torso. Officer Nelson asked Carroll Nelson
what happened. Carroll Nelson told Officer
Nelson that Anderson had hit him with a pipe.
At this point, Officer Nelson asked
Carroll Nelson if he was all right, and if he
could get up. Carroll Nelson said no that
he was hurt, had a hard time breathing, and
was in a lot of pain. Officer Nelson
assured Carroll Nelson that medical help
would be arriving soon. Officer Nelson then
stepped out of the room and informed Officer
Jones that they were going to arrest Joseph
Anderson for assault.
Officer Nelson went back to the
room to check on Carroll Nelson again. The
paramedics still had not arrived, so Officer
Nelson asked Officer Jones to find out where
the paramedics were. Only after Officer
Jones located the paramedics did Officer
Nelson put Anderson in handcuffs and arrest
him for assault.
(We note that later events
confirmed the reasonableness of Officer
Nelsons concern for Carroll Nelsons physical
well-being. After the paramedics transported
Carroll Nelson to the hospital, he underwent
immediate abdominal surgery, and he spent the
next week in the hospital. The surgeon who
treated Nelson described his injuries as life-
threatening.)
As the Supreme Court explained in
Davis, hearsay statements made during the
course of a police interrogation are non-
testimonial if the circumstances objectively
indicate that the primary purpose of the
interrogation was to enable the police to
respond to an ongoing emergency.28 We find
that to be the case here.
Viewed objectively, the
circumstances surrounding Officer Nelsons
questions to Carroll Nelson demonstrate that
her primary purpose was to respond to an
ongoing situation: to determine the nature
and extent of Carroll Nelsons injuries, and
to determine the type of assistance he might
need. According to the officers testimony,
when she arrived at the apartment, she had
been told that someone was hurt and needed
help, but she did not know that a crime had
been committed. And, just before Officer
Nelson questioned Carroll Nelson, the officer
heard Carroll Nelson tell the woman that he
was hurt, and that he was having a hard time
breathing.
Under these circumstances, the
primary focus of Officer Nelsons question
What happened? was to sort out an ongoing
emergency situation rather than to
investigate a past crime. We note that even
after Carroll Nelson told Officer Nelson that
Anderson had hit him with a pipe, Officer
Nelson did not respond by questioning Carroll
Nelson further about how he got injured.
Rather, Officer Nelsons follow-up questions
were directed toward ascertaining the nature
and extent of Carroll Nelsons injuries. She
then assured Carroll Nelson that medical
assistance was on the way, and she directed
her partner, Officer Jones, to find out why
the paramedics had not yet arrived.
We acknowledge that, even though
most of the Supreme Courts discussion in
Davis focuses on the primary purpose of the
police interrogation, the Supreme Court also
stated that in the final analysis it is the
declarants statements, not the interrogators
questions, that the Confrontation Clause
requires us to evaluate.29 And, as we
explained above, when the Supreme Court
analyzed the facts of Davis and Hammon, the
Court focused to some degree on factors that
would affect the declarants state of mind:
(1) whether the declarant was speaking about
events that were currently happening or
circumstances that could currently be
responded to, as opposed to events that were
clearly in the past and could only be
investigated and litigated; (2) whether the
declarant was facing an ongoing emergency
(i.e., describing or seeking help for a
current physical danger); and (3) whether the
setting of the declarants statement was a
perilous crime scene or a safe location.30
But even analyzing Carroll Nelsons
out-of-court statement by reference to his
state of mind (as opposed to Officer Nelsons
state of mind), we reach the same conclusion
that the out-of-court statement was not
testimonial. Even though Carroll Nelsons
statement was a description of a past event,
his description was relevant to communicate
or explain the nature and extent of his
current injuries. The record shows that
Carroll Nelsons injuries needed immediate
attention, and he made his statement in a
perilous setting.
Therefore, whether we focus on
Officer Nelsons primary purpose in asking the
question What happened? or, instead, we focus
on Carroll Nelsons state of mind when he
offered his answer, we reach the same
conclusion: Carroll Nelsons statement to
Officer Nelson that Joe had hit him with a
pipe was non-testimonial under the tests set
forth in Crawford and Davis. We conclude
that the admission of this hearsay statement
did not violate Andersons right of
confrontation.
The judgment of the superior court
is AFFIRMED.
_______________________________
1 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
2 Id., 541 U.S. at 68, 124 S. Ct. at 1374.
3 ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
4 Id., ___ U.S. at ___, 126 S. Ct. at 2273-74.
5 A.R.E. 803(2).
6 Anderson v. State, Alaska App. Memorandum Opinion and
Judgment No. 4823 (Jan. 28, 2004), 2004 WL 178742.
7 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
8 Id., 541 U.S. at 53-54, 124 S. Ct. at 1365.
9 Id., 541 U.S. at 68, 124 S. Ct. at 1374.
10 ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224
(2006).
11 Id., ___ U.S. at ___, 126 S. Ct. at 2270-71, 2274 &
n.2.
12 Id., ___ U.S. at ___, 126 S. Ct. at 2271.
13 Id., ___ U.S. at ___, 126 S. Ct. at 2277, 2280.
14 Id., ___ U.S. at ___, 126 S. Ct. at 2273-74.
15 Id., ___ U.S. at ___, 126 S. Ct. at 2276 (emphasis in
original) (quoting Lilly v. Virginia, 527 U.S. 116, 137, 119 S.
Ct. 1887, 1900, 144 L. Ed. 2d 117 (1999)).
16 Davis, ___ U.S. at ___, 126 S. Ct. at 2276.
17 Id. (emphasis in original).
18 Id.
19Id., ___ U.S. at ___, 126 S. Ct. at 2272.
20Id., ___ U.S. at ___, 126 S. Ct. at 2272-73.
21Id., ___ U.S. at ___, 126 S. Ct. at 2273.
22Id., ___ U.S. at ___, 126 S. Ct. at 2278-79.
23Id., ___ U.S. at ___, 126 S. Ct. at 2278.
24Id.
25Id., ___ U.S. at ___, 126 S. Ct. at 2279.
26Id.
27Id.
28Id., ___ U.S. at ___, 126 S. Ct. at 2273-74.
29Id., ___ U.S. at ___, 126 S. Ct. at 2274 n.1.
30Id., ___ U.S. at ___, 126 S. Ct. at 2276, 2279.
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