TORREY CROSS v. COMMONWEALTH OF KENTUCKYAnnotate this Case
JANUARY 19, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
ON REMAND FROM THE UNITED STATES SUPREME COURT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 01-CR-001262
COMMONWEALTH OF KENTUCKY
** ** ** ** ** ** ** **
BEFORE: BARBER AND JOHNSON, JUDGES;1 MILLER,2 SPECIAL JUDGE.
MILLER, SPECIAL JUDGE:
This matter is before us upon remand by
the United States Supreme Court for reconsideration in light of
its decision in Davis v. Washington, 547 U.S. ___, 126 S.Ct.
2266, 165 L.Ed.2d 224 (2006).
In our previous decision we
Judges David Barber and Rick A. Johnson concurred in this opinion prior to
the expiration of their respective terms of office on December 31, 2006.
Release of the opinion was delayed by administrative handling.
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
determined that statements made by the victim in an emergency
911 call were nontestimonial and therefore not subject to the
confrontation clause concerns contained in Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Davis addressed Crawford in the context of a 911 call and
concluded that such calls are normally nontestimonial and not
subject to the rule as stated in Crawford.
Upon reviewing this
case in light of Davis, we again conclude that the statements
made in the 911 call made by the victim in this case were
nontestimonial and, accordingly, not subject to exclusion from
the trial under the confrontation clause concerns addressed in
We accordingly affirm.
We begin by restating the factual background of the
Natia Clarkson had known Torrey Cross for eighteen years.
He was a cousin to her roommate, Kim Stovall, and went by the
On April 8, 2001, Cross was at Clarkson's
apartment on Brockton Lane.
He was dressed in a Hawaiian shirt.
He left and returned at 2:00 a.m. the next morning, April 9,
Later the day of April 9, 2001, Cross called for a cab
from Clarkson's apartment.
Yellow Cab # 786, with driver Mike
Eilers, was dispatched to the address to pick up a fare going to
13th and Hill Streets.
Eilers arrived between 4:45 p.m. and
The fare was Cross, who signaled from the apartment
- 2 -
building porch for Eilers to wait.
In describing Cross, Eilers
indicated that he was an African-American; 6 foot, 1 inch tall;
stocky; 225-230 pounds; and wearing a loudly colored Hawaiian
Eilers waited for five to seven minutes, got
impatient, and left, only to be told by dispatch to return five
At 6:12 p.m. on April 9, 2001, a woman who identified
herself as 40-year old Shelly Miles (a neighbor of Natia
Clarkson) called 911 from her apartment on Brockton Lane and
reported that a large black man whom she did not know had broken
down her back door, come in, choked her until she lost
consciousness, taken her prescription medications and money, and
left in yellow cab # 786.
She further advised 911 that she had
called the cab company to report this and they advised her to
call the police.
She reported to 911 that the next door
neighbors knew she had narcotics due to her having cancer; and
that she had been unable to control her bladder and had urinated
on herself, but said she did not need EMS.
Upon being sent back to Brockton Lane, Eilers picked
up Cross who asked to be taken to 13th and Hill Streets.
in the cab, Cross began rustling through a black fanny pack bag.
As he pulled several pill bottles out of the bag, Cross asked
Eilers if he had heard of any of the drug names, and Eilers
replied that he had not.
Apparently in response to a request by
- 3 -
police dispatchers, while in route to 13th and Hill Streets, cab
dispatch made one call asking Eilers for his destination, then
uncharacteristically made two calls asking for the cab's exact
Cross asked Eilers why dispatch wanted to know the
He got nervous and excited and told Eilers to
pull over at Brook and Magnolia, well short of his destination.
He paid his fare and got out.
Eilers found a cell phone in the
cab after Cross left and turned it over to the police.
Meanwhile, Officer Jeffrey Schmidt responded to the
He interviewed the victim, who was very distraught:
screaming, yelling, crying, and generally hysterical.
redness around her neck area was, in the officer's opinion, in
the imprint of a thumb.
She told him that she had heard her
door being kicked in and was confronted and choked by a man she
recognized but did not know by name.
No others in the apartment building answered the
officer's knock. He did interview Clarkson, Stovall, and
Stovall's sister, Angela Nelson.
The officer received the cell phone recovered from the
cab. It rang constantly.
One of the saved numbers matched the
number of Natia Clarkson's apartment.
The officer provided a description of the intruder to
Clarkson, Stovall and Nelson.
The victim, who was a friend of
- 4 -
Clarkson, also described the intruder to Clarkson.
knew from the description that it was Cross.
Photos were taken of marks on the victim's neck and of
the apartment, including the broken door. Unidentifiable
fingerprints were taken from the door and a pill bottle.
The next day, Detective Horn was assigned as the lead
detective on the case.
He began with two suspects, a Jesse
Wheeler, Jr. and an “88.”
Wheeler was eliminated after Eilers
did not identify him as the person in the cab; further, he was
in prison at the time of the crime.
The detective recovered ten
bottles of the victim's medications when a resident of Patton
Court in the Parkhill Housing Project, near the original cab
destination of 13th and Hill Streets, reported to the police
that she found the bag and drugs on her porch.
then interviewed the victim at her apartment.
physically upset and crying.
She was still
After taking photographs of the
bag and medications, he returned what was left of her medication
The victim gave the detective an additional description
of the intruder.
The detective then interviewed the victim at her
apartment. She was still physically upset and crying. After
taking photographs of the bag and medications, he returned what
was left of her medication to her.
The victim gave the
detective an additional description of the intruder.
- 5 -
detective went next door and spoke to Clarkson and Stovall in
hope that they could give a name to his suspect, “88.” Clarkson
and Stovall did know that “88” was also Torrey Cross and
provided a physical description of him which matched the
description given by the victim.
The detective showed the
victim and Eilers a photopak and then made up a wanted poster
Cross was arrested on April 12, 2001. At the time, he
had $70.00 in cash.
He waived his rights, told the detective
that he did know the victim, and placed his location before,
during, and after the crime at Clarkson's apartment, which
Clarkson could not corroborate.
He further admitted that on
April 9, 2001, he was wearing a brightly colored Hawaiian shirt;
he called for the cab, told it to wait, and then had to call
again; he paid $20 for a bag of medicines from Stovall's 14-15
year old son (who according to the detective was tall, slender
and of medium build); he asked the cab driver about the use of
some of the medications; he decided to get out of the cab when
the dispatcher kept asking about the cab's location; he exited
the cab and went to the Parkhill Housing Project; and when told
of the description of the intruder, he admitted that it was
Sometime after he was arrested, Cross called Angela
Nelson asking for Clarkson's phone number.
- 6 -
Cross told Nelson
that he had heard from others about some statements he had made
to Clarkson, and told Nelson that Clarkson needed to come to
court and indicate that she had lied about anything he said to
her. Clarkson stated that Cross never asked her to testify for
him or to say anything in particular, beyond asking her if she
thought that the victim would “shut up” if he gave her
Five months after the crime, and several months before
the trial, the victim died.
Her cause of death was unrelated to
Cross was indicted by the grand jury on two counts of
first-degree robbery,3 two counts of first-degree burglary,4
intimidating a witness,5 and PFO I.
On motion of the
Commonwealth, one of the robbery counts, one of the burglary
counts, and the charge of intimidating a witness were dismissed.
After a jury trial, Cross was convicted on lesser charges of
second-degree robbery and second-degree burglary, enhanced by
In an opinion rendered on July 22, 2005, this Court
affirmed the judgment of the trial court.
The Kentucky Supreme
Court denied the appellant’s petition for discretionary review
Kentucky Revised Statutes 515.020, a class B felony.
Kentucky Revised Statutes 511.020, a class B felony.
Kentucky Revised Statutes 524.040, a class D felony.
- 7 -
on January 11, 2006.
On October 22, 2006, the United States
Supreme Court granted certiorari and remanded the cause to us
for consideration of the 911 call issue in light of its decision
in Davis v. Washington, 547 U.S. ___, 126 S.Ct. 2266, 165
L.Ed.2d 224 (2006).
See Cross v. Kentucky, ___ S.Ct. ___, 2006
WL 993564, 75 USLW 3162 (U.S.Ky. Oct 02, 2006) (NO. 05-10347).
On the 911 tape, the victim stated that a large black
man whom she did not know had broken down her back door, come
in, choked her until she lost consciousness, taken her
prescription medications and money, and left in yellow cab #
The 911 call was made in the immediate wake of the
appellant’s intrusion into the victim’s home.
In Davis, the
Supreme Court addressed the matter at hand, in relevant part, as
In Crawford, it sufficed for resolution of
the case before us to determine that “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 53, 124 S.Ct.
1354. Moreover, as we have just described,
the facts of that case spared us the need to
define what we meant by “interrogations.”
The Davis case today does not permit us this
luxury of indecision. The inquiries of a
police operator in the course of a 911 call
are an interrogation in one sense, but not
in a sense that “qualifies under any
conceivable definition.” We must decide,
therefore, whether the Confrontation Clause
applies only to testimonial hearsay; and, if
- 8 -
so, whether the recording of a 911 call
The answer to the first question was
suggested in Crawford, even if not
“The text of the Confrontation Clause
reflects this focus [on testimonial
hearsay]. It applies to ‘witnesses'
against the accused-in other words,
those who ‘bear testimony.’ 1 N.
Webster, An American Dictionary of the
English Language (1828). ‘Testimony,’
in turn, is typically ‘a solemn
declaration or affirmation made for the
purpose of establishing or proving some
fact.’ Ibid. An 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.” 541 U.S., at
51, 124 S.Ct. 1354.
A limitation so clearly reflected in the
text of the constitutional provision must
fairly be said to mark out not merely its
“core,” but its perimeter.
We are not aware of any early American case
invoking the Confrontation Clause or the
common-law right to confrontation that did
not clearly involve testimony as thus
defined. Well into the 20th century, our own
Confrontation Clause jurisprudence was
carefully applied only in the testimonial
context. See, e.g., Reynolds v. United
States, 98 U.S. 145, 158, 25 L.Ed. 244
(1879) (testimony at prior trial was subject
to the Confrontation Clause, but petitioner
had forfeited that right by procuring
witness's absence); Mattox v. United States,
156 U.S. 237, 240-244, 15 S.Ct. 337, 39
L.Ed. 409 (1895) (prior trial testimony of
deceased witnesses admitted because subject
to cross-examination); Kirby v. United
States, 174 U.S. 47, 55-56, 19 S.Ct. 574, 43
- 9 -
L.Ed. 890 (1899) (guilty pleas and jury
conviction of others could not be admitted
to show that property defendant received
from them was stolen); Motes v. United
States, 178 U.S. 458, 467, 470-471, 20 S.Ct.
993, 44 L.Ed. 1150 (1900) (written
deposition subject to cross-examination was
not admissible because witness was
available); Dowdell v. United States, 221
U.S. 325, 330-331, 31 S.Ct. 590, 55 L.Ed.
753 (1911) (facts regarding conduct of prior
trial certified to by the judge, the clerk
of court, and the official reporter did not
relate to defendants' guilt or innocence and
hence were not statements of “witnesses”
under the Confrontation Clause).
Even our later cases, conforming to the
reasoning of Ohio v. Roberts, 448 U.S. 56,
100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), never
in practice dispensed with the Confrontation
Clause requirements of unavailability and
prior cross-examination in cases that
involved testimonial hearsay, see Crawford,
541 U.S., at 57-59, 124 S.Ct. 1354 (citing
cases), with one arguable exception, see
id., at 58, n. 8, 124 S.Ct. 1354 (discussing
White v. Illinois, 502 U.S. 346, 112 S.Ct.
736, 116 L.Ed.2d 848 (1992)). Where our
cases did dispense with those requirementseven under the Roberts approach-the
statements at issue were clearly
nontestimonial. See, e.g., Bourjaily v.
United States, 483 U.S. 171, 181-184, 107
S.Ct. 2775, 97 L.Ed.2d 144 (1987)
(statements made unwittingly to a Government
informant); Dutton v. Evans, 400 U.S. 74,
87-89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)
(plurality opinion) (statements from one
prisoner to another).
Most of the American cases applying the
Confrontation Clause or its state
constitutional or common-law counterparts
involved testimonial statements of the most
formal sort-sworn testimony in prior
judicial proceedings or formal depositions
- 10 -
under oath-which invites the argument that
the scope of the Clause is limited to that
very formal category. But the English cases
that were the progenitors of the
Confrontation Clause did not limit the
exclusionary rule to prior court testimony
and formal depositions, see Crawford, supra,
at 52, and n. 3, 124 S.Ct. 1354. In any
event, we do not think it conceivable that
the protections of the Confrontation Clause
can readily be evaded by having a notetaking policeman recite the unsworn hearsay
testimony of the declarant, instead of
having the declarant sign a deposition.
Indeed, if there is one point for which no
case-English or early American, state or
federal-can be cited, that is it.
The question before us in Davis, then, is
whether, objectively considered, the
interrogation that took place in the course
of the 911 call produced testimonial
statements. When we said in Crawford, supra,
at 53, 124 S.Ct. 1354, that “interrogations
by law enforcement officers fall squarely
within [the] class” of testimonial hearsay,
we had immediately in mind (for that was the
case before us) interrogations solely
directed at establishing the facts of a past
crime, in order to identify (or provide
evidence to convict) the perpetrator. The
product of such interrogation, whether
reduced to a writing signed by the declarant
or embedded in the memory (and perhaps
notes) of the interrogating officer, is
testimonial. It is, in the terms of the 1828
American dictionary quoted in Crawford,
“‘[a] solemn declaration or affirmation made
for the purpose of establishing or proving
some fact.’ ” 541 U.S., at 51, 124 S.Ct.
1354. (The solemnity of even an oral
declaration of relevant past fact to an
investigating officer is well enough
established by the severe consequences that
can attend a deliberate falsehood. See,
e.g., United States v. Stewart, 433 F.3d
273, 288 (C.A.2 2006) (false statements made
- 11 -
to federal investigators violate 18 U.S.C. §
1001); State v. Reed, 2005 WI 53, ¶ 30, 280
Wis.2d 68, 695 N.W.2d 315, 323 (state
criminal offense to “knowingly giv[e] false
information to [an] officer with [the]
intent to mislead the officer in the
performance of his or her duty”).) A 911
call, on the other hand, and at least the
initial interrogation conducted in
connection with a 911 call, is ordinarily
not designed primarily to “establis[h] or
prov[e]” some past fact, but to describe
current circumstances requiring police
The difference between the interrogation in
Davis and the one in Crawford is apparent on
the face of things. In Davis, McCottry was
speaking about events as they were actually
happening, rather than “describ[ing] past
events,” Lilly v. Virginia, 527 U.S. 116,
137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999)
(plurality opinion). Sylvia Crawford's
interrogation, on the other hand, took place
hours after the events she described had
occurred. Moreover, any reasonable listener
would recognize that McCottry (unlike Sylvia
Crawford) was facing an ongoing emergency.
Although one might call 911 to provide a
narrative report of a crime absent any
imminent danger, McCottry's call was plainly
a call for help against bona fide physical
threat. Third, the nature of what was asked
and answered in Davis, again viewed
objectively, was such that the elicited
statements were necessary to be able to
resolve the present emergency, rather than
simply to learn (as in Crawford) what had
happened in the past. That is true even of
the operator's effort to establish the
identity of the assailant, so that the
dispatched officers might know whether they
would be encountering a violent felon. See,
e.g., Hiibel v. Sixth Judicial Dist. Court
of Nev., Humboldt Cty., 542 U.S. 177, 186,
124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). And
finally, the difference in the level of
- 12 -
formality between the two interviews is
striking. Crawford was responding calmly, at
the station house, to a series of questions,
with the officer-interrogator taping and
making notes of her answers; McCottry's
frantic answers were provided over the
phone, in an environment that was not
tranquil, or even (as far as any reasonable
911 operator could make out) safe.
We conclude from all this that the
circumstances of McCottry's interrogation
objectively indicate its primary purpose was
to enable police assistance to meet an
ongoing emergency. She simply was not acting
as a witness; she was not testifying. What
she said was not “a weaker substitute for
live testimony” at trial, United States v.
Inadi, 475 U.S. 387, 394, 106 S.Ct. 1121, 89
L.Ed.2d 390 (1986), like Lord Cobham's
statements in Raleigh's Case, 2 How. St. Tr.
1 (1603), or Jane Dingler's ex parte
statements against her husband in King v.
Dingler, 2 Leach 561, 168 Eng. Rep. 383
(1791), or Sylvia Crawford's statement in
Crawford. In each of those cases, the ex
parte actors and the evidentiary products of
the ex parte communication aligned perfectly
with their courtroom analogues. McCottry's
emergency statement does not. No “witness”
goes into court to proclaim an emergency and
Davis seeks to cast McCottry in the unlikely
role of a witness by pointing to English
cases. None of them involves statements made
during an ongoing emergency. In King v.
Brasier, 1 Leach 199, 168 Eng. Rep. 202
(1779), for example, a young rape victim,
“immediately on her coming home, told all
the circumstances of the injury” to her
mother. Id., at 200, 168 Eng. Rep., at 202.
The case would be helpful to Davis if the
relevant statement had been the girl's
screams for aid as she was being chased by
her assailant. But by the time the victim
- 13 -
got home, her story was an account of past
Davis at 547 U.S. ____, ____, 126 S.Ct. 2266, 2274-2277
In summary, Davis concludes that in the normal case i.e., when the 911 call is made to seek emergency assistance –
it is nontestimonal and the confrontation clause is not
In the case at hand, the victim made the 911 call
in the immediate wake of the home intrusion, assault, and
robbery perpetrated by the appellant.
The call was without any
aforethought of giving a statement for later use against Cross
in a court proceeding.
Hence, the statements are not excludable
pursuant to the confrontation clause under Crawford and Davis.
As noted in our previous decision the statements are
otherwise admissible as an excited utterance pursuant to KRE6
We accordingly affirm the trial court’s admission of
the 911 tape at trial.
The remaining issues raised by Cross in his original
appeal we construe as not being implicated by the mandate
contained in the Supreme Court’s remand.
While those issues
include hearsay issues which implicate the confrontation clause,
in our previous decision we concluded that the statements at
Kentucky Rules of Evidence.
- 14 -
issue were cumulative with other evidence admitted at trial and,
accordingly, harmless error.
For the foregoing reasons the judgment of the
Jefferson Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce P. Hackett
Gregory D. Stumbo
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
- 15 -