January 27, 2005
ALBERT D. STANCIL, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (M11520-02). (Hon. Mildred M. Edwards, Trial Judge).
Before Schwelb and Reid, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Schwelb, Associate Judge
Argued December 10, 2004
On January 6, 2003, following a bench trial, Albert D. Stancil was convicted of two counts of assault upon his wife, Roslyn Stancil,*fn1 and one count of possession of a prohibited weapon (knife) (PPW (b)).*fn2 The prosecution's evidence against Stancil consisted solely of the testimony of a Metropolitan Police Department officer, Shauntelle Anderson, who appeared at the Stancils' home in response to a 911 call. At Stancil's trial, Officer Anderson related, inter alia, certain statements that Mrs. Stancil made to the police shortly after they arrived at the scene of a domestic dispute that had turned violent.*fn3 Over defense objection, the trial judge admitted the out-of-court statements of Mrs. Stancil under the "excited utterance" exception to the hearsay rule. Stancil argued to the court, through counsel, that his wife "should be here today to testify to this."*fn4 The trial judge disagreed;*fn5 she admitted Officer Anderson's testimony regarding what Mrs. Stancil had told the police, and she found Stancil guilty as noted above.*fn6
On appeal, Stancil, supported by the Public Defender Service (PDS) as amicus curiae, relies on Crawford (which was decided fourteen months after his trial) and contends that he has been denied his right to confront the witnesses against him, in violation of the Sixth Amendment. He claims that Mrs. Stancil's out-of-court statements were "testimonial" as that term is used in Crawford, and that their admission, without a prior opportunity for cross-examination, therefore contravened the Confrontation Clause. The government responds that the point has not been preserved and that, in any event, the statements at issue were not testimonial.
For reasons set forth below, we are of the opinion that Stancil's Sixth Amendment claim was adequately preserved. We further conclude that while Mia's request to her father to stop hurting her mother was non-testimonial, and was properly admitted into evidence, there is reason to believe that some, if not all, of Mrs. Stancil's out-of-court statements were testimonial. See Part II.E., infra. In part because the parties at the time of the trial were not addressing the issues subsequently identified in Crawford, however, the record is unclear as to which, if any, statements were testimonial, and as to whether the evidence not excludable on the basis of the Confrontation Clause was sufficient to render the admission of any testimonial statements harmless beyond a reasonable doubt. Accordingly, we remand the record to the trial court for further proceedings consistent with this opinion.
I. THE TRIAL COURT PROCEEDINGS
The significant constitutional issues raised in this appeal were generated by a disagreement between two parents regarding their children's diet. It is undisputed that on the afternoon of October 23, 2002, Stancil and his three children were at the home of his mother, who had been caring for them while their parents were at work. The children said that they were hungry, and Mr. Stancil gave them some alleged "junk food" to eat.*fn7 The children apparently told their mother about the food that their father had given to them, and Mrs. Stancil emphatically expressed her displeasure. She and her husband began to argue, the dispute degenerated into violence, and there was enough of a commotion to cause someone (whose identity is not disclosed by the record) to call 911.
Officer Anderson testified that on the afternoon in question, she received a radio run "to investigate trouble" at an address on 16th Street, N.W., which was the home of Stancil's mother. She and two other officers responded to that address, and they heard "yelling and screaming coming from inside the premises." The officers knocked on the door, the door "came open," and Officer Anderson observed a frightening scene:
The complaining witness was standing with her children and the defendant's mother to the right and [Mia] the oldest daughter of the defendant and complaining witness was screaming with a knife in her hand pointing it at the defendant stating stop hurting my mommy, stop hurting my mommy, I'm not going to let you hurt mommy any more.
At that time, Mr. and Mrs. Stancil were standing only six or seven feet apart, with Mia between them. Officer Anderson told Mia to "please drop the knife, little girl." Mia complied and promptly burst into tears. Officer Anderson observed that Mrs. Stancil had a slight swelling "right around the eye socket."*fn8
With the knife safely out of Mia's hands, the officers "got all the parties involved separated and calmed down." Immediately after the scene had been secured -- "within a minute['s] time" after the police arrived -- Officer Anderson was able to speak to Mrs. Stancil (to whom she repeatedly referred as the "complaining witness"), and to "interview" several of the persons present, one by one, beginning with Mrs. Stancil.
According to Officer Anderson, after [Mrs. Stancil] informed me that they got into the argument over the junk food, that the defendant then hit her with a closed fist in her head. She stumbled back, he then proceeded to push her and when he pushed her she fell down on the ground. While she was on the ground the defendant began to kick her, hitting at her with his feet and his fist. The defendant then, I mean, the complaining witness started to scoot away from him as he continued to strike her while she was on the ground. The defendant's mother came between them [and] tried to separate them. At this point the complaining witness was briefly allowed to escape [the defendant's] blows that he was providing to her. The defendant then went into the kitchen drawer, retrieved a steak knife and proceeded to chase the complaining witness around the house with it.
Mrs. Stancil further told Officer Anderson that as her husband was chasing her, she picked up a pot in order to stop him from trying to stab her with the knife.*fn9
Stancil took the witness stand in his own defense. He testified that while he and his wife were arguing about the food that he had given to the children, Mrs. Stancil threatened to "get a knife, that she was going to stab me." He claimed that his wife had previously stabbed him a few years earlier, and that he was therefore concerned about her threats. As Mrs. Stancil was retrieving the knife from the drawer, Mr. Stancil pushed her away, and she fell to the ground. Mrs. Stancil still had the knife, so Mr. Stancil "took the knife from her . . .
[a]nd it just, it went on from there." Stancil claimed that he "really [didn't] remember my daughter holding a knife to me," nor did he recall the officers telling Mia to drop the knife. He insisted that he and his wife "were both coming at each other" and "travelling throughout the house," but he denied that he chased his wife with the knife, or, indeed, at all.*fn10
In closing argument, the prosecutor emphasized the significance of the remark made by Mia upon the arrival of the police:
Your Honor, what could be more dramatic than a seven-year-old girl being forced to defend her mother by standing in between her mother and father holding a knife saying leave my mommy alone, you're not going to hurt my mommy anymore.
The trial judge agreed, and she found it impossible for me to believe a father could be in a situation where his seven-year-old daughter is holding a knife and saying don't hurt mommy any more and have uniform[ed] police officers come into the house, and order that child to drop that knife, not to be able to remember that. He can't remember if he chased her. He doesn't know how she got the bruise on her face, and that's objective observed evidence by the police officer who has no reason to lie about the facts, that Ms. Stancil had a bruise on her face. [I]sn't the likely scenario here if we fill in the gaps left out by Mr. Stancil just as the complainant describes it in her excited utterance to the police?
Telling Stancil that "I just don't believe you," and crediting Mrs. Stancil's statement to the police (which the judge had previously admitted as an "excited utterance"),*fn11 the judge found Stancil guilty of the three counts that remained. This appeal followed.
II. LEGAL ANALYSIS
A. Preservation of the Claim
The government asserts that Stancil did not preserve in the trial court his claim under the Confrontation Clause, and that our review should therefore be for plain error. We do not agree.
The question whether the admission of Officer Anderson's recitation of the out-of-court statements by Roslyn and Mia Stancil violated the defendant's rights under the Sixth Amendment was raised at least implicitly by Stancil's attorney, and the trial judge explicitly recognized that the issue was before her. As we have noted, defense counsel argued to the judge that Roslyn Stancil "should be here today to testify." While counsel did not specifically state that Mrs. Stancil should be present in person so that Stancil could confront and cross-examine her, it is difficult to imagine for what other purpose Stancil could have sought her presence.*fn12 The trial judge made it clear that she was fully aware of the constitutional issues which are presented when the prosecution bases its case largely on the hearsay statements by persons who have not been called to testify. In the judge's words, "the Sixth Amendment['s] Confrontation Clause is implicated whenever an out-of-court statement comes in by somebody who is not sitting on the witness stand."
"The purpose of requiring a specific objection is to enable the prosecution to respond to any contentions raised and to make it possible for the trial judge to correct the situation without jettisoning the trial." Hunter, 606 A.2d at 144; see also Adams v. United States, 302 A.2d 232, 234 (D.C. 1973). In this case, the trial judge was fully apprised of the constitutional issue before her, and she at least implicitly decided it. If the judge had believed that the Confrontation Clause had been violated (an issue that she explicitly identified), she would have excluded the challenged testimony. Under these circumstances, the rationale for treating the constitutional issue as having been waived, or for requiring Stancil to show plain error, has no application. In this case, as in Chatmon v. United States, 801 A.2d 92, 100 (D.C. 2002), the appellant "benefits from the supervision of the trial by an attentive trial judge," who recognized the existence of a significant issue, here the applicability of the Confrontation Clause.
It is true, of course, that Stancil's attorney did not urge upon the trial judge the distinction between "testimonial" and "non-testimonial" out-of-court statements articulated in Crawford, nor did he assert that Ohio v. Roberts, 448 U.S. 56 (1980), partially overruled by Crawford, was incorrectly decided. But "[o]nce a . . . claim is properly presented [to the trial court], a party can make any argument [in the appellate court] in support of that claim; parties are not limited to the precise arguments made below." West v. United States, 710 A.2d 866, 868 n.3 (D.C. 1998) (quoting Yee v. Escondido, 503 U.S. 519, 534 (1992)). This is especially true where, as here, the new arguments presented on appeal by Stancil and by PDS were generated by a change in the law, and were not available to Stancil at trial.
Accordingly, we hold that Stancil's claim of a Confrontation Clause violation was preserved, and we proceed to the merits.
B. The Confrontation Clause and the Crawford Decision
The Sixth Amendment to the Constitution provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The phrase "witnesses against" could plausibly be read to mean  only "those who actually testify at trial, . . .  [or] those whose statements are offered at trial, . . . or  something in between." Crawford, 124 S.Ct. at 1359 (citations omitted). In Crawford, the Supreme Court, after an exhaustive examination of the antecedents and history of the Confrontation Clause, rejected both of the first two of these possible readings. Instead, the Court concluded that the term "witnesses" encompasses some, but not all, hearsay declarants, id. at 1364, and specifically, that it includes those whose statements are testimonial. Id.
Prior to Crawford, and under the regime of Roberts, any out-of-court statement was constitutionally admissible so long as it either fell within a firmly rooted exception to the hearsay rule or bore "particularized guarantees of trustworthiness." Id. at 1369 (quoting Roberts, 448 U.S. at 66)). The change effected by Crawford was concisely summarized in United States v. Saget, 377 F.3d 223 (2d Cir. 2004):
Crawford abrogates Roberts with respect to prior testimonial statements by holding that such statements may never be introduced against the defendant unless he or she had an opportunity to cross-examine the declarant, regardless of whether that statement falls within a firmly rooted hearsay exception or has particularized guarantees of trustworthiness. See Crawford, 124 S.Ct. at 1370, 1374.
Id. at 226.
Insofar as testimonial statements are concerned, the Sixth Amendment, as construed in Crawford, "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination."*fn13 124 S.Ct. at 1370. "Dispensing with confrontation because testimony is obviously reliable," continued Justice Scalia, "is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." Id. at 1371. "Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 1374.
In Crawford, the Court did not define "testimonial" statements, but it provided a number of illustrations. 124 S.Ct. at 1374.*fn14 Although the Court's extensive discussion provides helpful context, only one kind of "testimonial statement" described in the Court's opinion is relevant here, namely, a statement made during police interrogation. Quoting the definitions of the words "witnesses" and "testimony," in the 1828 edition of N. WEBSTER, AN AMERICANDICTIONARY OF THE ENGLISH LANGUAGE,*fn15 Justice Scalia explained that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. at 1364. Accordingly, [s]tatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. Cobham's examination was unsworn . . . .*fn16
That interrogators are police officers rather than magistrates does not change the picture either . . . . In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class.
Id. at 1364-65 (citations omitted). The Court emphasized that "[w]e use the term 'interrogation' in its colloquial, rather than any technical legal, sense." Id. at 1365 n.4. Because the statement at issue in Crawford was made during the course of a police interrogation of Crawford's wife which incriminated Crawford, and was "knowingly given in response to structured police questioning," it "qualifie[d] under any conceivable definition."*fn17 Id.
C. Crawford and "Excited Utterances"
This appeal presents to this court, for the first (but assuredly not the last) time, a question as to the proper application of the principles of Crawford to alleged "excited utterances" which have been admitted into evidence in domestic violence cases under an exception to the hearsay rule.*fn18 As the court observed in Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. 2004), "[o]ne recent scholarly article estimates that between eighty and ninety percent of domestic violence victims recant their accusations or refuse to cooperate with a prosecution." Id. at 965 (citing Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L. Rev. 687, 709 n.76 (2003)). Prosecutors in this jurisdiction obviously face the same problem and, as the trial judge explicitly recognized in this case, the government has frequently gone forward with domestic violence prosecutions without the alleged victim's cooperation or testimony, ordinarily by introducing into evidence, as excited utterances, out-of-court statements made by the alleged victims, or by other eyewitnesses, to investigating police officers or, in some cases, to 911 operators. Cf. People v. Moscat, 777 N.Y.S.2d 875, 878 (N.Y. Crim. Ct. 2004) ("because complainants in domestic violence cases often do not appear for trial, prosecutors have in recent years increasingly tried to fashion 'victimless' prosecutions").
In this case, the judge admitted all of Mrs. Stancil's statements to Officer Anderson under the excited utterance exception. On appeal, Stancil presents only a constitutional challenge, and he does not claim that the judge's ruling was incorrect as a matter of the law of evidence. See note 11, supra. We therefore treat as undisputed, for purposes of this appeal, the correctness of the judge's ruling that all of Mrs. Stancil's statements to Officer Anderson were admissible under the excited utterance exception.
The question has been raised, in two recent cases cited to us by the government, whether an excited utterance in the kind of situation presented here can ever be "testimonial" in the Crawford sense. To address this question, we must consider the nature of this exception to the hearsay rule. Excited utterances were originally received in evidence on the theory that the declarant was so excited or agitated by the precipitating event that he or she was still "under the spell of [the event's] effect." United States v. Edmonds, 63 F. Supp. 968, 971 (D.D.C. 1946).*fn19 Indeed, as the Court stated in Crawford, to the extent the hearsay exception for spontaneous declarations existed at all [in 1791], it required that the statements be made "immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage." Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B. 1694).
124 S.Ct. at 1368 n.8. Spontaneous utterances were admitted if they were "made in the transaction . . . or while it was pending." Packet Co. v. Clough, 87 U.S. 528, 542 (1874).
In recent years, however, the hearsay exception for excited utterances has been broadened to include a non-spontaneous statement made "within a reasonably short period" after a startling event, even if it was made in response to police questioning. See, e.g., Jones v. United States, 829 A.2d 464, 466 (D.C. 2003) (per curiam); Smith v. United States, 666 A.2d 1216, 1222-23 (D.C. 1995). These decisions countenance the admission, as excited utterances, of statements that can hardly be described as "reflex actions" or "verbal photographs or images of the contents of the brain." Edmonds, 63 F. Supp. at 971.
In Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004), the court perceived an inherent contradiction in the characterization of any excited utterance as "testimonial" within the meaning of Crawford:
We further note that the very concept of an "excited utterance" is such that it is difficult to perceive how such a statement could ever be "testimonial." "The underlying rationale of the excited utterance exception is that such a declaration from one who has recently suffered an overpowering experience is likely to be truthful." Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000). To be admissible, an excited utterance "must be unrehearsed and made while still under the stress of excitement from the startling event." Id. "The heart of the inquiry is whether the declarants had the time for reflection and deliberation." Id. An unrehearsed statement made without time for reflection or deliberation, as required to be an "excited utterance," is not "testimonial" in that such a statement, by definition, has not been made in contemplation of its use in a trial. See Crawford, 124 S.Ct. at 1364.
Id. at 952-53; accord, Fowler, 809 N.E.2d at 964 (quoting Hammon).*fn20
Other courts, however, have rejected the Hammon-Fowler analysis. In Lopez v. State, __ So. 2d __, 2004 WL 2600408 (Fla. Ct. App. Nov. 17, 2004), the court considered the position articulated in Hammon and Fowler that an excited utterance can never be testimonial. The court disagreed:
While this argument has some appeal at least on the surface, we do not think that excited utterances can be automatically excluded from the class of testimonial statements.
In our view, the findings necessary to support a conclusion that a statement was an excited utterance do not conflict with those that are necessary to support a conclusion that it was testimonial. A statement made in the excitement of a startling event is likely to be more reliable given the fact that the declarant had little time to make up a story. But, under Crawford, reliability has no bearing on the question of whether a statement was testimonial. Some testimonial statements are reliable and others are not.
__ So. 2d at __. After distinguishing cases involving statements by declarants to family members or friends, the court stated:
In contrast, a startled person who identifies a suspect in a statement made to a police officer at the scene of a crime surely knows that the statement is a form of accusation that will be used against the suspect. In this situation, the statement does not lose its character as a testimonial statement merely because the declarant was excited at the time it was made.
These principles lead us to conclude that the statement at issue was a testimonial statement. While it is true that Ruiz was nervous and speaking rapidly, he surely must have expected that the statement he made to Officer Gaston might be used in court against the defendant. He knew that Gaston was a policeman who was on the scene in an official capacity to investigate a reported crime. Even in his excitement, Ruiz knew that he was making a formal report of the incident and that his report would be used against the defendant.
We find the reasoning of the court in Lopez persuasive. Some excited utterances are testimonial, and others are not, depending upon the circumstances in which the particular statement was made. Especially in light of the apparent expansion in recent years of the kinds of statements which fall under the rubric of the hearsay exception for excited utterances, we conclude that such utterances cannot automatically be exempted from the strictures of Crawford.
D. Testimonial Statements and Police Interrogation
We now turn to the task which Crawford explicitly left to future cases, and consider the meaning and application of the terms "testimonial statement" and, within that category, "police interrogation," to a scenario such as the one presently before us. PDS and the United States Attorney have both provided us with extensive, scholarly and most helpful submissions and case summaries addressing the meaning of these terms. Nevertheless, as is so often the case, we think that the correct interpretation lies somewhere between the positions of the contestants.
PDS advocates a broad interpretation of both terms, rejects what it sees as the government's over-emphasis on "structure" and formality, and suggests that any accusatory statement is testimonial. The government, on the other hand, stresses that testimonial statements must be "formal" and "official." Some of the differences are only in emphasis; in any event, our resolution of them follows.
In its brief, PDS attempts to defeat the government's position by resort to reductio ad absurdum. PDS quotes from a pre-Crawford law review article in which the authors "ask the reader to imagine a judicial system that advertised as follows":
If you want to make a criminal accusation against a person, make the statement however you wish and present it to us in a way that we can pass it on to the fact-finder. If you want, you can make it in person to the fact-finder, but you don't have to. You can make it on audio or video tape, you can make it in writing (no need for a signature), you can make it by telephone (we've set up a special number, 911, for just that purpose), or you can make it to any person you want, with the request that he or she pass it on to us. And you don't have to take an oath. In fact, if you want to do the whole thing anonymously, that's OK, too. We can use the statement at trial however you make it.
Richard D. Friedman and Bridget McCormack, Dial-In Testimony, 150 U. Pa. L. Rev. 1171, 1247 (2002). Agreeing with the authors' characterization of such a regime as "appalling," id., PDS asserts that to limit testimonial statements to formal declarations such as depositions or affidavits "would [create] an incentive to encourage the making of statements . . . lacking formalities such as the oath, because the avoidance of such formalities would ensure that the statement would not be covered by the Confrontation Clause." Id. Using some less than temperate terminology, PDS argues that "[s]uch an end-run around confrontation, the natural extension of the government's fixation on formality, would never have been countenanced by the Framers." (Emphasis added.)
In Crawford, the Supreme Court found it "implausible that a provision which concededly condemned trial by sworn ex parte affidavit thought [sic] trial by unsworn ex parte affidavit perfectly OK." 124 S.Ct. at 1365 n.3. Indeed, we do not understand the government to be arguing the contrary. Nevertheless, we think that PDS' attempt to apply the quotation from the Friedman and McCormack article to the present controversy is less than convincing. After all, the Confrontation Clause is not the only safeguard against the admission of out-of court statements. Unless such statements fall within a recognized hearsay exception, they continue to be inadmissible, and Crawford did nothing to undermine the protections provided to criminal defendants by the law of evidence. The parade of horribles conjured up in the Friedman-McCormack passage consists of the most rank hearsay. Unless the prosecution could show, e.g., that an unsigned writing, or an anonymous telephone call, constituted an excited utterance or fell with some other hearsay exception -- a very difficult showing in some of the cited examples -- the out-of-court statement would be inadmissible. The requirement of some level of structure or formality, as advocated by the government, is consistent with Crawford, and we do not believe that PDS has established that such a requirement is an absurd fixation.
PDS also appears to argue that Stancil can prevail in this case without showing that his wife's out-of-court statement was made in response to police interrogation. According to PDS, "[t]he community of legal scholars also nearly universally agrees that a statement is testimonial if, objectively, its maker should understand [that] it could be used prosecutorially." (Citations omitted.)*fn22 Under this theory, the word "testimonial" includes "all accusatory excited utterances made both to police officers and civilian bystanders." In Crawford, however, as we have previously noted, the Court explicitly distinguished between a "formal statement to [a] government officer" and "a casual remark to an acquaintance," and at least implied that the former is testimonial while the latter is not. 124 S.Ct. at 1364. Further, although the Court stated that the term "testimonial" applies "at a minimum" to prior testimony and to police interrogations, id. at 1374, it is unlikely that the Court intended the term to embrace contacts with the police that do not amount to interrogations.
We also find ourselves in disagreement with parts of the government's argument. Quoting from the decision of the Court of Appeals of Indiana in Hammon, the government asserts:
[T]he Supreme Court chose not to say that any police questioning of a witness would make any statement given in response thereto "testimonial"; rather, it expressly limited its holding to police "interrogation." . . . [This] choice of words indicates that police "interrogation" is not the same as, and is much narrower than, police "questioning."
809 N.E.2d at 952 (emphasis added). Although the court in Hammon has supported its position with dictionary definitions of "interrogation,"*fn23 and has made a superficially plausible argument based upon these definitions, we think that the court's differentiation between "interrogation" and "questioning" cannot fairly be reconciled with Justice Scalia's articulation or overall approach in Crawford. The Court there stated that "[w]e use the term 'interrogation' in its colloquial, rather than any technical legal, sense," citing Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). Crawford, 124 S.Ct. at 1365 n.4. In Innis, the Court described "interrogation" as "express questioning or its functional equivalent."*fn24 Moreover, the term "police interrogation" is used frequently in the Crawford opinion, without any suggestion that it means something more technical than questioning in a structured environment. Neither additional "formality" nor an "adversarial setting," however slight, is required.
We agree with the government, however, that the types of statements cited by the Court as testimonial share certain characteristics; all involve a declarant's knowing responses to structured questioning in an investigative environment*fn25 or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings. See [Crawford, 124 S.Ct.] at 1365 n.4 (stating that declarant's "recorded statement, knowingly given in response to structured police questioning," was made in an interrogation setting and was therefore testimonial).
Saget, 377 F.3d at 228. We also agree with the government that "[p]olice who respond to emergency calls for help and ask preliminary questions to ascertain whether the victim, other civilians, or the police themselves are in danger, are not obtaining information for the purpose of making a case against a suspect." Statements made to officers at this initial stage of the encounter -- one might fairly call it "securing the scene" -- are not testimonial. The government acknowledges, however, that "[i]n contrast, where police officers engage in structured questioning of victims or witnesses to a crime after the emergency has passed and the declarant is no longer under its effect, the resulting statements are more like the 'formal statement[s] to government officers' of concern in Crawford." We agree with this articulation, with the exception of the phrase "and the declarant is no longer under its effect"; these words, in our view, appear to imply that an "excited utterance" cannot be testimonial, a proposition which we have rejected in Part II.C., supra.
The parties have brought numerous post-Crawford decisions to our attention. As we have seen, not all of them are consistent with one another; given the difficulty of the issue, this is hardly astonishing. Of the various recent cases, we have found the analysis in People v. Kilday, supra note 25, to be especially helpful.
In Kilday, a hotel manager's daughter called the police after Patricia Kiernan "reluctantly admitted [to the manager] that Kilday, her live-in boyfriend, intentionally burned her with an iron." 20 Cal. Rptr. 3d at 165. Two police officers arrived in the hotel lobby and "encountered a frightened and upset Kiernan, the area was unsecured and the situation uncertain." Id. at 172. The court found no indication in the record that the officers were aware of the nature of the crime at issue or the identity of the alleged assailant; whether Kilday was on or near the premises; whether Kilday possessed any weapons that could pose a danger to the officers or others; or whether Kiernan needed immediate medical attention.
Id. It was thus evident that the scene had not yet been secured.
Following a discussion of the case law, the court addressed the question whether the information reluctantly provided by Ms. Kiernan to the officers -- namely, that Kilday had burned her -- constituted a testimonial statement within the meaning of Crawford:
Based on the record before us, we conclude that Officers Cirina and Federico were not producing evidence in anticipation of a potential criminal prosecution in eliciting basic facts from Kiernan about the nature and cause of her injuries. In reaching this conclusion, we do not adopt a blanket rule that all statements obtained from victims or witnesses by police officers responding to emergency calls are necessarily non-testimonial. The determination whether a statement obtained through police questioning in the field is testimonial requires a case-specific, fact-based inquiry. Under Crawford, this inquiry must center around whether the officer involved was acting in an investigative capacity to produce evidence in anticipation of a potential criminal prosecution. Here, where the responding officers were still principally in the process of accomplishing the preliminary tasks of securing and assessing the scene, we conclude that the statement elicited is not testimonial.
Id. at 173-74.
The court also addressed a later statement made by Ms. Kiernan after the scene had been secured. This second statement*fn26 was taken by Detective Denise Randall, a female officer who was summoned to the scene in order to make Ms. Kiernan more comfortable. In holding that this statement was testimonial, the court explained:
[T]he totality of the circumstances surrounding the making of the statement lead us to conclude that it is testimonial under Crawford because at the time Randall obtained the statement from Kiernan, she was acting in an investigative capacity to produce evidence in anticipation of a potential criminal prosecution . . . . [B]y the time Randall questioned Kiernan the overarching purpose of the interaction was obtaining a detailed statement; the responding officers had dealt with the exigent safety, security, and medical concerns initially predominant when officers arrive on a scene in response to a call for assistance.
Id. at 171-72.
A comparison of the two statements discussed in Kilday is significant for our purposes. We are in agreement with the court in Kilday that statements made to police officers while they are "securing the scene" often are not testimonial. However, once the scene has been secured, and once the officers' attention has turned to investigation and fact-gathering, statements made by those on the scene, in response to police questioning, tend in greater measure to take on a testimonial character, and they are thus ordinarily inadmissible under the Confrontation Clause in the absence of a prior opportunity for cross-examination.
E. Mrs. Stancil's Statements
We now endeavor to apply the foregoing legal principles to the record before us. Specifically, we must decide whether some or all of the statements made by Mrs. Stancil to Officer Anderson were testimonial.
It is appropriate to point out at the outset that the order in which events relevant to this case occurred makes this a difficult inquiry. Stancil was tried and convicted on January 6, 2003. Crawford was not decided until March 8, 2004. Neither counsel at Stancil's trial had been provided with a crystal ball, and the parties were therefore in no position to litigate the questions which, as a result of the Supreme Court's analysis in Crawford, have now become dispositive. The defense made no attempt to show that Mrs. Stancil's statements were testimonial,*fn27 and the prosecution did not seek to demonstrate that they were not. We therefore face the formidable task of attempting to comb the record for information required to decide questions which had not, and which could not have been, on the minds of court and counsel when the case was being tried.
In spite of this unavoidable difficulty, the record contains a substantial amount of information relevant to the issues at hand. Officer Anderson's testimony demonstrates that the activities of the police at the apartment can fairly be divided into two parts, to which we shall refer as Stage I and Stage II. In Stage I, the officers entered the apartment and observed Mia, holding a knife. The little girl was screaming at her father to "stop hurting my mommy." Officer Anderson directed Mia to drop the knife, and Mia did so. The officers then "got all the parties involved separated and calmed down. . . ." In other words, the police first secured the scene. Upon the completion of this task, Stage I ended.
The officers then proceeded to Stage II, which began immediately after the parties had been separated and calmed down. At this point, according to Officer Anderson, she was "able to speak to the complaining witness. . . ." Officer Anderson later testified that she "interview[ed]" Mrs. Stancil. She also stated that she subsequently talked to Mia and to Albert, Jr., and it is apparent from her narrative that she spoke with mother, daughter, and son separately and consecutively.
Throughout her testimony, Officer Anderson referred to Mrs. Stancil as the "complaining witness." In closing argument, the prosecutor stated that Mrs. Stancil's injuries were "entirely consistent with what the complainant testified happened. . . ." He claimed that Mrs. Stancil "was hysterical and crying and testified . . . to Officer Anderson, [providing] a plausible story [concerning her] injuries. . . ." Defense counsel also referred to Mia's statement "stop hurting my mommy" and Albert, Jr.'s account (later stricken) as "testimony." There is thus considerable evidence that, at least in colloquial terms, all participants in the trial considered Mrs. Stancil to be a "witness" and her statement to Officer Anderson to be "testimonial." This cannot, of course, be dispositive; whether there was a police interrogation turns on what occurred, and not on labels used by the persons present. Nevertheless, the use of this terminology was arguably significant, because, when the officer and the attorneys spoke, they had no tactical reason for describing or not describing Mrs. Stancil as a witness or for characterizing or not characterizing her account as testimony.
If the lawyers and the police believed that Mrs. Stancil was a "witness" who was giving "testimony," this is, in our view, a relevant factor in the calculus.
Moreover, we are satisfied that the separation of the potential witnesses, and Officer Anderson's individual and consecutive discussions with them, constituted "structured police questioning." Crawford, 124 S.Ct. at 1365 n.4. We also agree with PDS that "[t]o say the least, it was highly foreseeable that when [Mrs. Stancil] described to police in an interview in detail that Mr. Stancil punched her, kicked her, and struck her while she was on the ground, her accusatory words, establishing the facts of the alleged crime, would have punitive consequences." Moreover, once the scene was secured, the officers necessarily focused on whether a crime had been committed, for they were required to arrest a suspect "[i]f the preliminary investigation establishe[d] probable cause that an intrafamily offense had been committed." MPD General Order 304.11 at 2. The officer must make the arrest regardless of "[s]peculation that the victim may not proceed with the prosecution or that the case may not result in a conviction." Id. at 10.*fn28
Nevertheless, the case is not as simple as the foregoing discussion might suggest, for the record also supports some contrary inferences. Officer Anderson testified that she spoke to Mrs. Stancil "within a minute" of the arrival of the police, and that at that time Mrs. Stancil was "shaking and crying." This is difficult to reconcile with the officer's testimony that Mrs. Stancil only talked to her "after we got all the parties involved separated and calmed down. . . ." (Emphasis added.) While "shaking and crying," Mrs. Stancil "informed" the officer of what her husband had done to her. This raises the possibility that Mrs. Stancil may have been talking to Officer Anderson spontaneously, immediately after the police arrived at the apartment, when the scene had not yet been secured and calm had not yet been restored.
Moreover, the trial judge's assessment of the events is especially significant, for she heard the testimony first hand. The judge addressed the point now under discussion as follows:
Whether [Mrs. Stancil's statement] was made in response to a question, I don't even know. But I know that it was said according to the officer's testimony as soon as the officer had the opportunity to speak with the complainant who was shaking and crying and had a fresh bruise on her face and was holding her stomach as if in pain.
In sum, there is evidence in the record to support an inference that at least some of what Mrs. Stancil told Officer Anderson came out during Stage I, before the persons in the apartment had been separated and had calmed down, and before any "question and answer" interview began. If this is what occurred, then any statements by Mrs. Stancil during Stage I, like Ms. Kiernan's first statement in Kilday, were not testimonial, and could therefore be properly admitted into evidence under the excited utterance exception to the hearsay rule without coming into conflict with the Confrontation Clause.
Given the uncertainty regarding what occurred, we think it appropriate to remand the record to the trial court for additional findings regarding whether the Confrontation Clause was violated. On remand, the court should determine, inter alia, which, if any, statements by Mrs. Stancil were volunteered during Stage I, before interrogation began, rather than having been made in response to Officer Anderson's questions in Stage II; and what, if anything, Mrs. Stancil said before the officers had completed their initial task of securing the scene, separating the principals, and restoring a reasonable measure of calm. If necessary, the trial judge should hold a further evidentiary hearing with respect to these questions.
F. Harmless Error Analysis
The government argues that if any error was committed, it was harmless, and we note that, even without Mrs. Stancil's statements, the evidence against Mr. Stancil was substantial. Mia's excited request to her father to stop hurting her mother, which was certainly not testimonial under the standards articulated in this opinion, and which was therefore properly admitted, was a powerful indication that her father had assaulted Mrs. Stancil and that Mia, armed with a knife, wanted him to stop doing so. Mrs. Stancil had a facial bruise, the existence of which tended to corroborate Mia's implicit but obvious accusation. The judge disbelieved Stancil's account, for Stancil claimed not to remember events that he could not reasonably have forgotten. If Stancil lied under oath -- and the judge effectively found that he did -- then this is, in itself, strong evidence of guilt.*fn29 Thus, the government's suggestion that even if Mrs. Stancil's out-of-court statements were erroneously admitted, Stancil was not substantially prejudiced, contains a measure of plausibility.
Nevertheless, a violation of the Confrontation Clause is constitutional error, and if constitutional error occurred, the government must prove beyond a reasonable doubt that it was harmless. Chapman v. California, 386 U.S. 18, 24 (1968). Notwithstanding the substantial evidence of guilt, we conclude that, without at least some admissible statement from Mrs. Stancil incriminating her husband, the government has not satisfied its formidable burden under Chapman.*fn30
For the foregoing reasons, the record is remanded for further proceedings consistent with this opinion. Upon completion of the proceedings on remand, the trial court shall promptly transmit, as a supplemental record, its findings, the transcript of any further proceedings, and all other relevant materials to this court.*fn31