State v. Lucas

965 A.2d 75

407 Md. 307

STATE of Maryland v. Dennis Lamont LUCAS.

No. 30, September Term, 2008.

Court of Appeals of Maryland.

February 19, 2009.

Brian S. Kleinbord, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen.), on brief, for Petitioner.

Brian M. Saccenti, Asst. Public Defender (Nancy S. Forster, Public Defender), on brief, for Respondent.

Argued before Bell, C.J. HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and JOHN C. ELDRIDGE, (Retired, Specially Assigned) JJ.

ADKINS, J.

We are asked to decide whether responsive statements made by a visibly upset woman, while standing in her apartment doorway, to a police officer responding to a "domestic" call, were testimonial and therefore inadmissible under the Sixth Amendment's Confrontation Clause. These statements were made in response to the officer asking her "what happened" and "where she got the marks[.]" These statements were admitted at the bench trial in the Circuit Court for Anne Arundel County which resulted in the conviction of Dennis Lamont Lucas, respondent, for second degree assault.¹ The State appeals from the judgment of the Court of Special Appeals reversing that conviction on the ground that respondent's constitutional rights were violated.

Lucas was alleged to have assaulted his girlfriend during a domestic dispute. Lucas moved in limine to exclude the victim's statements made to police officers who responded to the "domestic" call, contending that the statements' admission would violate his right of confrontation under the Sixth Amendment and the Maryland Declaration of Rights. Satisfied that the statements were admissible as an excited utterance and allowable under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Circuit Court denied Lucas's motion. The Court of Special Appeals, in an unreported opinion, reversed and remanded for a new trial, concluding that the statements were made under official interrogation, an obvious substitute for live testimony, and admitted in violation of Lucas's right to confront his accuser:

There was no emergency in progress; [the alleged victim] was in no present danger from [Lucas]; she was being protected by the police; she was actively separated from [Lucas]; she was telling what happened in the past, not the present; and the interrogation was part of an investigation into possibly criminal past conduct.

We issued a writ of certiorari to review the statements under Crawford and its progeny. We agree with the intermediate appellate court that the statements were testimonial because the primary purpose of the interrogation was to investigate a possible crime, and not to enable the officers to meet an ongoing emergency.

FACTS AND LEGAL PROCEEDINGS

On January 25, 2005, at approximately 11:00 p.m., Anne Arundel County Police Officer Wilbert Fowler received a "[d]omestic call." Fowler and Officer Dalton responded to 412 Pamela Road, Apartment B, in Glen Burnie a couple of minutes after receiving the call. Upon their arrival at the residence, Fowler observed Lucas sitting on some steps outside of the apartment. Fowler descended four or five stairs in getting to Apartment B, which was located in the lower level of the apartment building. Dalton stayed with Lucas outside of the apartment. Fowler encountered Emily Mulligan, the alleged victim, at her apartment "threshold" and observed that she was crying, her face was pretty red, her "eyes were kind of swollen and she had red marks on her neck."

Fowler testified that he then questioned Mulligan "about why [they] were called to the residence and why she was crying." According to Fowler, Mulligan responded that she and Lucas, her boyfriend, "were in a verbal argument" about "breaking up" and "that it became physical after that." Fowler testified that she told him she was "kicked in the leg" by Lucas and that "he grabbed her around the neck." She also told Fowler she sustained an abrasion or laceration on her back. Fowler did not have Mulligan sit down during the conversation. When asked by counsel "[w]hat if any rights did you advise her of[,]" Fowler responded, "I told her we were there for an investigation." He estimated that the conversation lasted "[m]aybe three to five minutes." In describing Mulligan's demeanor during this period, he said, "She was visibly upset. She was still crying. Very shaky." Fowler indicated that he asked Mulligan "[m]aybe one or two" questions and "kind of let her do the talking."

On cross-examination, Fowler agreed that his "purpose in speaking with Ms. Mulligan or knocking on the door and speaking with the occupants was to conduct an investigation" and that he was "there to gather information." He indicated that Mulligan filled out a "domestic violence form" while at the apartment and that he "went over it" with her. Mulligan was also photographed approximately 15 to 20 minutes after Fowler's initial conversation at the apartment. On redirect, Fowler stated that his initial questions to Mulligan were "why we were there, what happened" and "where she got the marks from[.]"

Fowler indicated that Officer Robey arrived on the scene after Mulligan told him about the marks. Fowler relayed to Robey what Mulligan had told him. He then went outside to join Lucas and Officer Dalton while Robey spoke with Mulligan for approximately five minutes. When Robey came out of the apartment and said something to Lucas, Lucas "[s]pun around and ran[,]" and the two officers pursued Lucas on foot. Lucas ran "right around the building, basically right to where the chase started[.]" Robey cornered him and Lucas surrendered, saying, "`you got me. I'm cold and I'm tired.'"

Defense counsel moved in limine to exclude Mulligan's out-of-court statements to the police officers. The court denied the motion and immediately proceeded to the trial on the merits. With the consent of counsel for both parties, the court agreed to accept Fowler's testimony given during the motion in limine hearing as if it were given during the merits trial.

Mulligan was not present in court on the day of trial. Fowler testified that he did not know where she was and that the State never asked him to go find her.

Lucas testified in his own defense. Lucas testified that Mulligan was his girlfriend and that they had an argument when she accused him of cheating on her. According to Lucas, Mulligan told him to leave. When he went to get his things, Mulligan ran at him and knocked him down. Lucas then got back up and pushed Mulligan off of him. He denied that he grabbed Mulligan around the neck, but indicated that "when [he] pushed her it was the upper part of her chest." Lucas then "got [his] stuff and went out in the hallway and [sat] on the steps." Lucas said that he could not leave because his car keys were in the apartment and that he sat outside "a good 15 to 20 minutes" before the police arrived. He testified that he ran from the police "[b]ecause [he] didn't believe [he] was getting locked up on some, — bull crap."

DISCUSSION

The State contends that the Court of Special Appeals erred in reversing Lucas's conviction and ordering a new trial because the admission of Mulligan's statements into evidence did not violate his rights under the Confrontation Clause.

The Confrontation Clause of the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. CONST. amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause barred the "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." In holding that the provision barred the admission of "testimonial" statements, the Supreme Court "fundamentally altered its Confrontation Clause jurisprudence[.]" State v. Snowden, 385 Md. 64, 78, 867 A.2d 314, 322 (2005). It did so upon recognizing that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Crawford, 541 U.S. at 50, 124 S.Ct. at 1363.

Before Crawford, an out-of-court statement's admissibility turned on whether the unavailable witness' statement has "adequate indicia of reliability — i.e., falls within a `firmly rooted hearsay exception' or bears `particularized guarantees of trustworthiness.'" Crawford, 541 U.S. at 42, 124 S.Ct. at 1359 (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). The Crawford Court rejected the Roberts test because it departed from the historical principles underlying the Confrontation Clause in two respects:

First, it is too broad: It applies the same mode of analysis whether or not the hearsay consists of ex parte testimony. This often results in close constitutional scrutiny in cases that are far removed from the core concerns of the Clause. At the same time, however, the test is too narrow: It admits statements that do consist of ex parte testimony upon a mere finding of reliability.

Id. at 60, 124 S.Ct. at 1369.

In Snowden, we reviewed the Crawford Court's abrogation of Roberts:

The Supreme Court found fault with the perceived unpredictability and subjectivity of the "indicia of reliability" test in Roberts. In overruling Roberts, the Court stated:

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable...