State v. Green

1

STATE OF WASHINGTON, Respondent, v. CARTEZ JUWON GREEN, Appellant.

No. 85151-9-I

Court of Appeals of Washington, Division 1

September 16, 2024

UNPUBLISHED OPINION

Chung J.

A jury convicted Cartez Green of burglary in the first degree with a firearm enhancement and misdemeanor harassment based on a domestic violence incident with his girlfriend, Samantha Turo. While Turo did not participate in the trial, the court admitted a recording of her police interview conducted shortly after the incident. On appeal, Green contends that admission of the police interview and related testimony by the officer violated his constitutional right to confrontation. We agree that the court erred by admitting this evidence because it was testimonial and the constitutional error was not harmless. We therefore reverse the conviction for burglary in the first degree with a firearm enhancement, but affirm the misdemeanor harassment conviction.

FACTS

At 12:12 a.m. on May 2, 2021, Cartez Green called 911 to report a car collision. Police arrived at 12:27 a.m. to find a vehicle off the side of the road with no reporting party on scene and began to impound the vehicle.

At 12:27 a.m., 911 received a call from a woman who was screaming, crying, yelling "get out," and arguing with a male voice. She yelled that she needed officers there and that "he is armed. I have six people [here]." She provided an address and continued screaming at "Cartez" to get out and that "they're scared of you." The dispatcher told the caller that the address belonged to an apartment complex and asked which apartment. She continued to scream "get out" and did not give the dispatcher the apartment number. The audio became increasingly chaotic, with the caller screaming and a male voice speaking. Crying hysterically, the caller yelled "Officer hurry up!" Over the next several minutes the caller became angrier, screaming and pleading with the dispatcher, who repeated that he did not know which apartment. The man in the background was angry and yelling at the caller. The caller began crying and asking for help, then yelling profanity at the dispatcher for not responding quickly. The dispatcher told the caller the call had been entered but repeated that he did not know which apartment.

Approximately seven minutes after the call began, a different female voice took the phone and provided dispatch with the apartment number. According to the second woman, who did not identify herself, the initial caller was Samantha Turo, and the male voice belonged to her boyfriend. Dispatch asked about weapons, to which the speaker responded that the man had a gun, but then clarified he had left the gun in his car. She also reported that the man had been hitting Turo the entire duration of the phone call. Shortly before hanging up, the woman stated that the man had left, but they did not know where he had gone other than "outside." According to police computer-aided dispatch reports, Green returned to his car at 12:35 a.m., where he met with two officers.

Three law enforcement officers arrived at Turo's apartment at 12:36 a.m. When the police entered the apartment, they noticed "a lot of items strewn and broken across the ground." The television in the living room was overturned, and there were several broken glass bottles on the floor in the kitchen and living room. The floor was sticky, "suggesting that the bottles of alcohol were full, or had been full prior to them breaking." Overall "it looked like some sort of altercation had occurred in the living room."

In addition to Turo, the officers found several women who had been having a "girls' night" and two teens babysitting Turo's baby. The primary officer on scene Jeffrey Lewis, noted that Turo had had swelling and bruising around her left eye and a small laceration under the eye. Turo was "very overwhelmed, and she was near hysterics. . . yelling and crying, and difficult to speak to and hard to understand at first." Lewis wore a microphone that captured the audio from the apartment and recorded to a video camera in his police vehicle. Lewis asked, "Is everybody OK?," and multiple women responded "yes." Turo told officers, "I don't want to see you." When asked if she was "OK," Turo responded, "No! I'm not OK," and explained that she was angry because the police had not come when she called, further stating, "I don't want to talk to you. Can't you see what the fuck is going on? I am not in the mood to talk to you!" Lewis spoke with some of the other women to learn what had happened at the apartment. Another officer was able to obtain a name, date of birth, and photograph of the alleged assailant from Turo.

About 10 minutes after arriving at the apartment, Lewis attempted to speak with Turo once again. On the recording of the encounter, Turo continued to cry. According to Lewis, Turo "was still very animated, still crying. . . she was very distraught," but he was able to have a conversation with her about the events of the evening. Lewis thanked Turo for speaking with his partner and explained that some of his questions might be redundant but he was "just trying to get an accurate picture of what happened."

In response to Lewis's questions, Turo reported that the alleged assailant was Cartez Green and they had been seeing each other for about a month. Through additional questions, Lewis clarified with Turo that Green was not the father of her baby, but the two had been in an intimate relationship. Turo said that earlier, Green had thrown something against the window and she went to see what had happened. Turo knew that Green had come for his belongings. When she opened the door, Green barged inside. She tried to push Green out but he forced his way into the living room and then the bedroom. She said Green pointed his gun "at the girls" and then at her. Turo said "he pointed his gun at me, and then I put it up to the side and then it went off, because my child was right here, and that scared me." Lewis asked what Turo thought when Green pointed the gun at her, and she responded, "He was gonna shoot me. I know him. I know him, he's crazy." Lewis inquired about what happened after Green fired the gun into the ceiling, and Turo explained that Green left because she said she was calling "the cops," but he kept texting her "threatening shit." Because Turo's phone was out of battery power, Lewis could not view the text messages at that time. Later, Lewis sent an officer back to the apartment to photograph the text messages, which did not include time stamps.

After finishing the interview with Turo, Lewis learned that Green had been the earlier 911 caller from the nearby car collision and went to meet him at that location, which was only two or three hundred yards away from the front entrance of the apartment complex. At that point, the officers who responded to the collision had already spoken with Green. Lewis placed Green under arrest.

Green told Lewis that he had been staying at Turo's apartment for two weeks. He said that he went to the apartment to grab his clothes and Turo let him in the front door. He initially claimed that his gun was in his car the whole time, but then admitted to having his gun in the apartment and that it went off accidentally. He also told Lewis that Turo hit him several times and she had bruises because he tried to protect himself.

The State charged Green with one count of burglary in the first degree, alleging he was armed with a deadly weapon and assaulted Turo, and one count of felony harassment. Both counts included a firearm enhancement.

Turo and the other women in the apartment did not participate in the prosecution and trial. Lewis and other law enforcement officers were the only witnesses to testify during the trial. The State sought to admit the audio recordings of Turo's 911 call, Lewis's interview with Turo, and Green's call to 911 for roadside assistance. Green objected to the admission of Turo's interview and portions of her 911 call on confrontation clause grounds. The court admitted Green's 911 call. It also determined the entirety of Turo's 911 call was nontestimonial in nature, and statements by Turo and the other unidentified person on the call were excited utterances and present sense impressions which were admissible as exceptions to the hearsay rule. The court admitted Turo's statements to Lewis because they "occurred while determining the nature and extent of the emergency occupants of the apartment and police officers were facing, thereby being non-testimonial in nature." Additionally, the court found Turo's statements to Lewis to be excited utterances and present sense impressions. Green moved for reconsideration of the court's decision to admit the interview. Again, the court concluded the statements were nontestimonial because, "the circumstances show the situation at the time of the interview to be chaotic and emergent, it was not secure. The interview was very informal, Ms. Turo was emotional, sobbing, and marginally responsive to questions."

During the trial, the jury heard the recording of Turo's 911 call. Through Lewis, the State played the recording of his interview with Turo in two parts. Video 1 recorded the initial contact with Turo, consisting mainly of her screaming and crying because of the delayed police response. The second video contained a redacted version of Lewis's interview with Turo, detailing the events recounted above. At trial, Lewis testified extensively as to the details of the events as reported to him by Turo during the interview. The court also admitted photographs of text messages between Turo and Green.

The jury convicted Green of burglary in the first degree through a general verdict. The jury found Green not guilty of felony...