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Anderson v. State (8/3/2007) ap-2113

Anderson v. State (8/3/2007) ap-2113

     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

             303 K Street, Anchorage, Alaska  99501
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) Court of Appeals No. A-8064
Appellant, ) Trial Court No. 3AN-00-10216 CR
v. ) O P I N I O N
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
          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.

          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
          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
          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

          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-
          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
          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
          The  judgment of the superior court




     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

     11    Id.,  ___ U.S. at ___, 126 S. Ct. at 2270-71,  2274  &

     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.


25Id., ___ U.S. at ___, 126 S. Ct. at 2279.



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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