United States v. Arnold
486 F.3d 177 (2007)
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Rule of Law:
Statements made to law enforcement are non-testimonial, and thus not barred by the Confrontation Clause, when made during an interrogation whose primary purpose, viewed objectively, is to enable police assistance to meet an ongoing emergency. Statements are testimonial when there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events for a later criminal prosecution.
Facts:
- On September 19, 2002, Tamica Gordon and her mother's boyfriend, Joseph Arnold, had an argument.
- Gordon stated that Arnold went into the house, retrieved a pistol, and pulled it out on her.
- Gordon fled the house, got into her car, drove around the corner, and called 911 at 7:43 a.m.
- Police officers arrived about five minutes later, where they found Gordon crying and hysterical; she repeated that Arnold had threatened to kill her with a gun.
- Shortly thereafter, Arnold returned to the scene as a passenger in a car driven by Gordon's mother.
- Upon seeing him, Gordon exclaimed to the officers, 'that's him, that's the guy that pulled the gun on me... he's got a gun on him.'
- After receiving consent from Gordon's mother to search the car, officers found a black handgun in a plastic bag directly under the passenger seat where Arnold had been sitting.
Procedural Posture:
- A federal grand jury charged Joseph Arnold with being a felon in possession of a firearm.
- At trial in the U.S. District Court, the key witness, Tamica Gordon, did not appear to testify despite a subpoena.
- The trial court admitted into evidence a redacted recording of Gordon's 911 call and her subsequent on-scene statements to police under the 'excited utterance' hearsay exception.
- The trial court ruled that the admission of these statements did not violate the Confrontation Clause.
- The trial court excluded testimony from a private investigator hired by the defense who would have stated that Gordon later recanted her story.
- A jury found Arnold guilty of the charge.
- Arnold appealed his conviction to the U.S. Court of Appeals for the Sixth Circuit.
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Issue:
Do out-of-court statements made to a 911 operator and responding police officers during an ongoing emergency constitute 'testimonial' evidence that violates the Sixth Amendment's Confrontation Clause when the declarant is unavailable to testify at trial?
Opinions:
Majority - Sutton, J.
No, the out-of-court statements are not testimonial and their admission does not violate the Confrontation Clause. Statements made to enable police assistance to meet an ongoing emergency are non-testimonial. Here, Gordon's 911 call was a plea for help against a bona fide physical threat from an armed assailant who was still at large. The initial on-the-scene statements to officers were also non-testimonial because the emergency was ongoing, as Arnold's location was unknown and he still posed a threat to Gordon, the public, and the officers. The officers' questions were aimed at resolving the present crisis, not investigating a past crime. Because the statements were non-testimonial, the Confrontation Clause does not apply, and they were properly admitted under the 'excited utterance' exception to the hearsay rule.
Dissenting - Moore, J.
Yes, the statements are testimonial and their admission violates the Confrontation Clause. The government failed to prove the existence of an ongoing emergency. By the time Gordon called 911, she had physically separated herself from Arnold and was describing past events, not events as they were happening. The emergency had ceased, rendering her statements to the 911 operator and the police testimonial in nature. Furthermore, the evidence presented at trial was insufficient to prove Arnold possessed the firearm beyond a reasonable doubt.
Concurring-in-part-and-dissenting-in-part - Griffin, J.
Partially. The 911 call and Gordon's initial spontaneous statements to police were non-testimonial cries for help during an ongoing emergency. However, Gordon's subsequent statements describing the gun, made in response to specific police interrogation while she was safely in the officers' protective custody, were testimonial. At that point, the emergency had ceased, and the primary purpose of the questioning shifted to investigating a past crime. The admission of these testimonial statements describing the weapon was a constitutional error that was not harmless, and a new trial is required.
Concurring-in-part-and-dissenting-in-part - Clay, J.
Partially. Judge Clay joins Judge Griffin's opinion that some of the statements were testimonial and improperly admitted. He also joins Judge Moore's dissenting opinion regarding the district court's error in refusing to admit the private investigator's impeachment testimony. A new trial is therefore warranted.
Analysis:
This case provides a significant application of the Supreme Court's 'primary purpose' test from Davis v. Washington to determine whether statements made during a 911 call and subsequent on-scene police questioning are testimonial. The majority's holding clarifies that an 'ongoing emergency' can persist even after a victim has physically separated from an assailant, so long as the assailant remains at large and poses a continuing threat. This decision strengthens the ability of prosecutors to use such statements in domestic violence and other cases where victims are often unavailable to testify, while highlighting the fine line between questions aimed at resolving an emergency and those aimed at gathering evidence for prosecution.
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