Monday, October 22, 2007

Court Again Confronts Crawford, Holds 911 Call Not Testimonial In Light of Davis v. Washington Factors

United States v. Proctor, No. 07-60011 (5th Cir. Oct. 22, 2007) (per curiam) (Garwood, Jolly, Stewart)

911 calls: testimonial or not, for purposes of the Confrontation Clause? It depends. Were the statements made for the purpose of allowing police to respond to an ongoing emergency, or has that purpose been accomplished such that any further statements become testimonial? Let's see how that played out here, on a somewhat strange set of facts.

Proctor, his brother Yogi, and their friend Fairley left a nightclub together and headed to Yogi's car. When they got there, Proctor grabbed a .38 revolver that Fairley had left on the dashboard. Fairley took exception to that, and Proctor started cussing, fired the gun into the ground twice, and took off running. Yogi called 911, and told the operator that Proctor 1) had stolen someone else's gun, fired it into the ground twice, and run back into the club; 2) was a convicted felon, and therefore barred from possessing a gun; 3) might be under the influence of cocaine; and 4) was "know[n] . . . real good" by the police. The police apprehended Proctor after a brief gun battle. Proctor was eventually convicted of three gun charges.

On appeal, Proctor argued that the admission of the 911 tape violated his rights under the Confrontation Clause. The court disagreed. It relied on Davis v. Washington, in which the Supreme Court held that statements made for the purpose of enabling police to respond to an ongoing emergency, which characterizes many 911 calls, are not testimonial for purposes of the Confrontation Clause. But Davis also acknowledged that a call for assistance can evolve into testimonial statements after the initial purpose of the call has been satisfied. So how do you know whether's a 911 call is testimonial? In Davis,
[t]he Court noted that: (1) the caller was describing the events as they were happening; (2) the caller was facing an ongoing emergency; (3) the nature of what was asked and answered was necessary to resolve the present emergency rather than learn what happened in the past; and (4) the caller’s answers were frantic. In conclusion, the Court held that the circumstances of the interrogation on the 911 recording indicate that the caller was not testifying as a witness, but rather was enabling police assistance to meet an ongoing emergency.

Applying these factors to Proctor's case, the court concluded that Yogi's 911 call was not testimonial:
Yogi’s call to 911 was made immediately after Proctor grabbed the gun and fired it twice. During the course of the call, he recounts what just happened, gives a description of his brother, indicates his brother’s previous criminal history, and the fact that his brother may be under the influence of drugs. All of these statements enabled the police to deal appropriately with the situation that was unfolding. The statements about Proctor’s possession of a gun indicated Yogi’s understanding that Proctor was armed and possibly dangerous. The information about Proctor’s criminal history and possible drug use necessary for the police to respond appropriately to the emergency, as it allowed the police to determine “whether they would be encountering a violent felon.”

The court rejected Proctor's argument that the emergency had passed once he ran off with the gun, concluding that Yogi could reasonably think the people in the nightclub were in danger, or that Proctor might come back to confront him and Fairley. So because the 911 call wasn't testimonial, its admission didn't violate Proctor's confrontation right.



Post a Comment

<< Home