State v. Sykes, Docket: And-18-181

204 A.3d 1282

STATE of Maine

v.Dwain A. SYKES

Docket: And-18-181

Supreme Judicial Court of Maine.

Argued: December 11, 2018

Decided: March 26, 2019

Jesse James Ian Archer, Esq. (orally), Sherman & Worden, P.A., Auburn, for appellant Dwain A. Sykes

Andrew S. Robinson, District Attorney, and Patricia A. Mador, Asst. Dist. Atty. (orally), Lewiston, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

HJELM, J.

[¶1] In this case, we again consider the admissibility of statements made by the alleged victim of a domestic violence assault during a 9-1-1 call for emergency assistance, when the victim does not testify at trial.

[¶2] Dwain A. Sykes appeals from a judgment of conviction entered in the Unified Criminal Docket (Androscoggin County, Mills, J. ) after a jury found him guilty of domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A) (2018). During the trial, the court admitted in evidence a recording of a 9-1-1 call after concluding, first, that the victim's recorded statements fell within the excited utterance exception to the hearsay rule, and, second, that the statements were nontestimonial and thus not subject to exclusion by the Confrontation Clause.¹ Sykes asserts that the court erred in both respects. We affirm the judgment.

I. BACKGROUND

[¶3] The following facts are drawn from the evidence presented at the pretrial hearing on the admissibility of the evidence at issue here, and at trial, with both records being viewed in the light most favorable to the State, see State v. Metzger , 2010 ME 67, ¶ 2, 999 A.2d 947, and from the procedural record, see In re Child of Nicholas G. , 2019 ME 13, ¶ 2, 200 A.3d 783.

[¶4] At the time of the assault, Sykes and the victim had been in a relationship for a number of years and shared a home where they lived with their children. On the morning of October 22, 2017, Sykes and the victim got into an argument in their residence, which was a mobile home. During the argument, Sykes twice hit the victim in her face with a closed fist. At approximately 9:30 a.m., the victim called 9-1-1 to report the assault and request police assistance. During the call, which lasted fourteen minutes, the victim sounded distressed and sometimes angry but was not audibly crying. Largely in response to the 9-1-1 dispatcher's questions, the victim described the assault, which she said had occurred that morning. Most of the dialogue, however, concerned what was then happening in the residence. Answering the dispatcher's questions, the victim told the dispatcher that Sykes was in an adjacent room in the home with three children and was aware that she had called 9-1-1. The victim also answered the dispatcher's questions about Sykes and what he was doing, about the house, and about potential safety concerns for both the victim and the officers who were en route to the scene.

[¶5] The dispatcher told the victim several times that officers were travelling to the scene but that she would keep the victim on the line until they arrived. Approximately ten minutes into the call, the dispatcher told the victim to instruct Sykes to go outside and wait for the officer. When the victim conveyed that information to Sykes, a loud and angry-sounding male voice is heard. Over the next several minutes, the dispatcher asked the victim a number of times whether Sykes was still in the residence, and each time the victim reported that he was. Finally, near the end of the call, the victim told the dispatcher that an officer had arrived and Sykes had gone outside. At a number of points during the call, between the dispatcher's questions, there were lengthy periods when neither the dispatcher nor the victim spoke.

[¶6] The first police officer to arrive was a Maine State Police trooper. After a brief conversation with Sykes outside of the residence, the trooper spoke with the victim, who reported that Sykes had punched her twice in the face. The trooper then returned to Sykes and arrested him.² A second officer, a sergeant with the Maine State Police, arrived at the home and spoke with the victim. In the course of their conversation, the victim reenacted the assault and described to the sergeant how Sykes had hit her. Although she allowed the officer to take pictures of her injury, she declined to sign a written statement.

[¶7] About two weeks later, Sykes was charged with domestic violence assault and pleaded not guilty. Anticipating the possibility that the victim would not voluntarily testify against Sykes, the State served the victim with a subpoena compelling her attendance at trial, which the court had scheduled for April of 2018. On the day the trial was scheduled to begin, however, the victim did not appear at the courthouse. At the State's request, the court issued a material witness warrant for the victim's arrest, see M.R.U. Crim. P. 17(h), and the State filed a motion in limine, requesting the court to determine the admissibility of the three sets of statements made by the victim on the morning of the assault, including the statements she made during the 9-1-1 call. Over Sykes's objection, see supra n.1, the court delayed the commencement of trial to the next day and proceeded to hold an in limine hearing.

[¶8] During the hearing on the motion in limine, the court heard testimony from the 9-1-1 dispatcher and listened to the recording of the 9-1-1 call. The court ultimately determined that the victim's statements during the 9-1-1 call, although hearsay, were admissible as excited utterances, see M.R. Evid. 803(2), and were nontestimonial and thus not barred from being admitted in evidence by the Confrontation Clause, see U.S. Const. amend. VI ; see also Me. Const. art. I, § 6 ; Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; Metzger , 2010 ME 67, ¶¶ 13-22, 999 A.2d 947.³

[¶9] The next morning, the victim voluntarily appeared at trial and was ordered to remain at the courthouse under police supervision to ensure her availability if called to testify. One of the State's witnesses was the 9-1-1 dispatcher, through whom the 9-1-1 recording was admitted as evidence without objection from Sykes and played for the jury. Sykes called two witnesses to testify regarding allegedly exculpatory statements made by the victim. Neither party called the victim as a witness.

[¶10] The next day, the case was submitted to the jury, which found Sykes guilty. Following a sentencing hearing held later that month, the court imposed a fully-suspended seven-month jail term and an eighteen-month period of probation. Sykes filed a timely appeal. See 15 M.R.S. § 2115 (2018) ; M.R. App. P. 2B(b)(1).

II. DISCUSSION

[¶11] Sykes asserts that the court erred by admitting in evidence the recording of the victim's 9-1-1 call because, he contends, that evidence is inadmissible pursuant to the Maine Rules of Evidence and the Confrontation Clause of the Sixth Amendment, U.S. Const. amend. VI, and article I, section 6 of the Maine Constitution. We consider these assertions in turn after addressing the standard of review.

A. Standard of Review

[¶12] At the in limine hearing, Sykes made clear that he objected to the admission of the 9-1-1 recording, and after a contested hearing, the court ruled that the evidence was admissible. When the State offered the recording in evidence during the trial, however, Sykes explicitly stated to the court that he had "[n]o objection" to its admission.

[¶13] "[T]he fact that the trial court has acted on a motion in limine does not relieve counsel of making objections ... at the appropriate points in the trial in order to make a record and preserve points of error for appeal." Field & Murray, Maine Evidence § 103.7 at 28-29 (6th ed. 2007). We have applied this principle—which triggers the more deferential standard of review associated with unpreserved claims of error, see State v. Solomon , 2015 ME 96, ¶ 13 n.4, 120 A.3d 661 —in the specific circumstance present here, where the court makes a pretrial ruling that certain evidence may be admitted at trial but the opposing party fails to object to the evidence when it is eventually offered at trial, see State v. Thomes , 1997 ME 146, ¶¶ 6-7, 697 A.2d 1262 ; State v. Varney , 641 A.2d 185, 186-87 (Me. 1994). But we have recognized an exception to the requirement that the opposing party voice an objection when the court characterizes its pretrial ruling as final and unequivocal. See State v. Allen , 2006 ME 21, ¶ 9 n.3, 892 A.2d 456 ; see also M.R. Evid. 103(e) ("A pretrial objection to ... evidence must be timely renewed at trial unless the court states on the record, or the context clearly demonstrates, that a ruling on the objection ... is final.").

[¶14] Here, the court arguably framed its ruling announced at the conclusion of the in limine hearing as definitive. Nonetheless, Sykes's explicit acquiescence to the admission of the 9-1-1 recording when it mattered most—at trial—generates the question of whether he preserved his claim of error for appellate review. In the end, however, we will assume, without deciding, that Sykes preserved his objection for appeal by having articulated his opposition to the admission of the recording at the pretrial hearing on the State's motion in limine, even though he ostensibly abandoned that objection at trial. See State v. Haji-Hassan , 2018 ME 42, ¶ 14, 182 A.3d 145 (where we "assum[ed], without deciding, that [a defendant's] arguments and the court's ruling at the hearing on the State's motion in limine served to preserve the objection"). This is because the difference in the standards of review is not consequential here. Even if we apply the more exacting level of scrutiny attendant to a preserved claim of error, we conclude for the reasons discussed below that no error was committed.

[¶15] Accordingly, "[w]e review the court's foundational findings or implicit findings to support admissibility of evidence for clear error, and we will uphold those findings...