TYRONE ANTOINE HARTSFIELD V. COMMONWEALTH OF KENTUCKY
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RENDERED : FEBRUARY 19, 2009
TO BE PUBLISHED
,$Uyrrum Courf of
2007-SC-000077-DG
TYRONE ANTOINE HARTSFIELD
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2005-CA-001209-MR
FAYETTE CIRCUIT COURT NO . 03-CR-00458
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING, IN PART, AND
REVERSING AND REMANDING, IN _PART
We granted Tyrone Hartsfield's motion for discretionary review of a Court
of Appeals opinion that held that the prosecution's use at trial of statements
made by an alleged sexual assault victim, who died after the return of the
indictment but before trial, would not violate the Sixth Amendment's
Confrontation Clause. We granted review of this issue because of the
significant impact the United States Supreme Court's analysis of the
Confrontation Clause in Crawford v . Washington ' has on trial practice in
Kentucky .
We reverse the Court of Appeals, in part, because we conclude that the
alleged victim's statements to an investigative nurse were testimonial in nature;
1
541 U.S . 36 (2004).
and their admission into evidence at trial would violate Hartsfield's
confrontation rights . But we affirm the Court of Appeals, in part, because we
conclude that excited utterances made by the victim to lay witnesses were not
testimonial in nature; and their admission at trial would not violate the
Confrontation Clause . We remand to the trial court for further proceedings
consistent with this opinion .
1 . FACTUAL AND PROCEDURAL BACKGROUND .
A grand jury indicted Hartsfield on charges of multiple sexual crimes
involving three separate female victims, one of whom was M.B . The indictment
charged Hartsfield with the first-degree rape and the first-degree sodomy of
M.B . M.B. died before the indictment came to trial, prompting Hartsfield's
motion to dismiss the counts in the indictment relating to M.B . on the ground
that M.B.'s statements concerning the alleged crimes were inadmissible
hearsay. The trial court denied the motion to dismiss. The Commonwealth
then moved in limine to establish affirmatively the admissibility of M.B.'s
statements . The first of the motions concerned M.B .'s statements to a nurse;
the second motion concerned two statements made to two separate individuals
following the incident, which were described as excited utterances . 2
Following the alleged sexual assaults, M.B . had been taken to a hospital
where she was examined by a Sexual Assault Nurse Examiner (abbreviated
Kentucky Rules of Evidence (KRE) 803(2) .
SANE and informally referred to as a SANE nurse) . 3 M.B. related the details of
the rape to the SANE nurse, who also collected samples using a rape test kit .
As for the statements claimed by the Commonwealth to be admissible as
excited utterances, the Commonwealth stated that M.B . fled her house
immediately after the rape and encountered a passerby named Malcolm
Buchanan. M.B . was crying and yelled, "He raped me ; he raped me." 4 In
addition, the Commonwealth reported that M.B. ran to her daughter's house
and told her daughter she had just been raped . The record indicates M.B .'s
statement to her daughter was made close in time and proximity to the alleged
rape .
Following a hearing, the trial court excluded all of the statements as an
abridgment of Hartsfield's right to cross-examine the witnesses against him.
The court further ordered the counts regarding M.B . to be dismissed . In light
of the rulings in limine, the Commonwealth and Hartsfield then reached a plea
agreement whereby Hartsfield pleaded guilty to the other amended counts of
the indictment.5 The Commonwealth then appealed from the trial court's order
3
4
5
Kentucky Revised Statutes (KRS) 314 .011(14) states that: "`Sexual assault nurse
examiner' means a registered nurse who has completed the required education and
clinical experience and maintains a current credential from the board [of Nursing]
as provided under KRS 314.142 to conduct forensic examinations of victims of
sexual offenses under the medical protocol issued by the Office of the Kentucky
State Medical Examiner pursuant to KRS 216B.400(4)[ .]"
According to Buchanan's statement to police contained in the record, Buchanan
also spotted the alleged perpetrator hastily leaving the house just before M.B. came
out.
Hartsfield entered a guilty plea to amended charges of two misdemeanor counts of
sexual misconduct and was sentenced to twelve months in jail, with credit for time
served on the charges.
overruling the motions in limine and dismissing the counts of the indictment
as to M.B . The Court of Appeals reversed the trial court on the belief that all of
the statements were covered by hearsay exceptions and, in particular, that the
statements to the SANE nurse did not run afoul of the Confrontation Clause
because they were not made by M.B . for the purpose of causing the nurse to
testify on her behalf.
II . ANALYSIS .
The determination of the admissibility of evidence is within the sound
discretion of the trial court. 6 A trial court abuses its discretion when its
decision is arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.? In this instance, we must resolve whether the trial court applied
the correct legal principle .
Hartsfield asserts that the admission of any of these statements would
violate his right to confront adverse witnesses under the Sixth Amendment's
Confrontation Clause . The United States Supreme Court held in Crawford v.
Washington $ that the Confrontation Clause precludes admission of the
statements of a witness unavailable to testify at trial if the witness' out-of-court
statements were "testimonial," unless the accused had a prior opportunity to
cross-examine the witnesse 9 Before Crawford , the Clause had been interpreted
Love v. Commonwealth, 55 S.W. 3d 816, 822 (Ky. 2001) .
English v. Commonwealth , 993 S.W.2d 941, 945 (Ky. 1999) .
541 U.S. 36 (2004) .
Id. at 53-54.
to allow admission of an unavailable witness's out-of-court statement if it
possessed adequate indicia of reliability. Before Crawford , the admissibility
question was whether the statement fell within a firmly rooted hearsay
exception or possessed other particularized guarantees of trustworthiness- 10
The Supreme Court in Crawford rejected that analysis as incompatible with the
Framers' intent in creating the Confrontation Clause . 11
Since Crawford , the threshold examination to determine a Confrontation
Clause violation is whether the proffered out-of-court statement was
testimonial. Examples of testimonial statements given in Crawford included
prior testimony at a preliminary hearing, before a grand jury, or at a former
trial; and statements made in response to police interrogations .
12
But the
Supreme Court did not otherwise provide a comprehensive definition of what is
encompassed by the term testimonial .
The Court referenced several "formulations of . . . `testimonial'
statements" in Crawford in its opinion : (1) "ex parte in-court testimony or its
functional equivalent-=that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine,
or similar pretrial statements that declarants would reasonably expect to be
used prosecutorially" ;13 (2) "extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions, prior
to Ohio v. Roberts , 448 U.S. 56, 66 (1980) .
11 Crawford, 541 U.S. at 59-68 .
12 Id. at 68.
13 Id. at 51 (citing the Brief for Petitioner) .
testimony, or confessions"; 14 and (3) "statements that were made under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial." 1 5 The Court did not
select any of these formulations as the definitive test to apply. And the Court
did say that where nontestimonial hearsay is at issue, it is consistent with the
Constitution to allow the states the development of their own hearsay law. 16
Since Crawford , the Supreme Court addressed the question of which
police interrogations qualify as
testimonial
in two decisions, Davis v.
Washington, and its companion case, Hammon v. Indiana . 17 In Davis, the
Court held that a domestic violence victim's 911 call for help and her responses
to the emergency operator's questions were nontestimonial and, therefore, not
subject to the Confrontation Clause. In Hammon , the police interview of a
victim at her home after police responded to a report of a domestic disturbance
contained testimonial statements that were subject to the Confrontation
Clause. The Court distinguished the statements in Hammon based on the role
of the police at the time the statement was obtained :
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
Id. at 51-52 (citing White v . Illinois , 502 U.S. 346, 365 (1992)).
1s Id. at 52 (citing the Brief for National Association of Criminal Defense Lawyers,
et al ., as Amici Curiae).
16 Crawford, 541 U .S. at 68.
17 547 U .S. 813 (2006) .
14
establish or prove past events potentially relevant to later criminal
prosecution. 18
Investigative interrogations are directed at establishing the facts of a past crime
in order to identify, or provide evidence to convict, the perpetrator; and the
product of such an investigative interrogation is testimonial. 19 In Davis, the
Court cited factors that are instructive in characterizing a statement as
testimonial, including: whether the events spoken about were actually
happening, or were past events ; the presence of an ongoing emergency;
whether what was asked and answered was for the purpose of resolving the
situation, rather than simply learning what had happened in the past; and,
finally, the level of formality in the interview .20 The Court in Davis and
Hammon noted that these results were provided for interrogations; but the
holding was not intended to mean that in the absence of interrogation,
statements are automatically nontestimonial . 21
A. The Sexual Assault Nurse Examiner's Questioning was
Predominantly for the Purpose of Information Gathering
and the Resulting Statement was Testimonial.
In the case at bar, the interview of M.B . by the SANE nurse bears more
similarity to a police interview, as in Crawford and Hammon , than to the
questioning conducted in the 911 call in Davis . Davis advises that persons
who are not police officers, but who may be regarded as agents of law
1 8 Id. at 822 .
19
Id. at 826.
20
Id. at 827.
21
Id. at 822 n . l .
enforcement (such as the 911 operator), can conduct interrogations which
would likewise be considered testimonial. 22
After the alleged rape, M.B. was taken to the hospital,23 where she
provided the SANE nurse with the details of what occurred . The nurse also
utilized a sexual assault collection kit .
The SANE nurse was acting in cooperation with or for the police. The
protocol of SANE nurses requires them to act upon request of a peace officer or
prosecuting attorney .24 A SANE nurse serves two roles : providing medical
treatment and gathering evidence . 25 SANE nurses act to supplement law
enforcement by eliciting evidence of past offenses with an eye toward future
criminal prosecution. The SANE nurse under KRS 314 .011(14) is made
available to "victims of sexual offenses," which makes the SANE nurse an active
participant in the formal criminal investigation. We believe their function of
evidence gathering, combined with their close relationships with law
enforcement, renders SANE nurses' interviews the functional equivalent of
police questioning.
In the case before us, the SANE nurse's interview was not to provide help
for an ongoing emergency but, rather, for disclosure of information regarding
what had happened in the past. M.B. was away from the perpetrator, and the
22
23
24
25
Id. at 823 n.2 .
The record does not reveal how long after the alleged rape this occurred but
indicates it was that same day or within hours .
KRS 314 .011(14) and KRS 216B .400(4) .
See KRS 216B .400(4) .
questioning was not for the purpose of resolving a problem. The interview had
some level of formality, despite being unsworn. So the statement was virtually
the kind of statement that a witness would give at a trial or hearing.
Looking to the factors enumerated in Davis, the SANE nurse's
questioning involved past events, was not related to an ongoing emergency, and
took on the nature of a formal interview. So we conclude that the statements
taken from M.B . during her interview with the SANE nurse were testimonial in
nature.
Following the Supreme Court precedent, we conclude that the Court of
Appeals erred when it reversed the trial court's ruling in limine excluding from
use at trial the statements M.B . gave the SANE nurse. These statements were
testimonial statements that Hartsfield never had the opportunity to crossexamine and so they are barred by the Confrontation Clause.
B . The Excited Utterance Hearsay Statements
Were Not Testimonial .
The two statements that the Commonwealth wants to introduce as
excited utterances present a more difficult issue, since Davis and Hammon
only address what happens when statements are given to law enforcement or
their surrogates . The excited utterances at issue, made to lay witnesses, do
not fit within the Crawford and Davis formulation of testimonial statements .
We conclude that the Court of Appeals correctly reversed the trial court for
excluding these statements as violative of the Confrontation Clause.
An excited utterance cannot be introduced into evidence if it is
determined to violate the Confrontation Clause because it is a testimonial
statement . The statements in the case at bar did not bear a similarity to the
testimonial statements at issue in Crawford . The statements in the case at
hand were spontaneous and unprompted by questioning. These statements
were not testimonial because they were not formal, not delivered to law
enforcement or its equivalent, and were in the nature of seeking help for an
emergency (even though it was not ongoing) . We do not regard the excited
utterances identified here as testimonial.
The Court of Appeals erred in failing to apply the Confrontation Clause
analysis to the alleged excited utterances in the first instance, but we agree
that it correctly determined that the statements identified meet the criteria to
be admissible under the excited utterance hearsay exception . According to
KRE 803(2), an excited utterance is a statement describing a startling event or
condition made while the declarant was under the stress of excitement caused
by the event or condition. For an out-of-court statement to meet that
definition, the declarant's condition at the time must give the impression that
the statement was spontaneous, excited, or impulsive rather than the product
of reflection and deliberation.26 The eight factors to consider in determining if
a statement is an excited utterance are:
(i) lapse of time between the main act and the declaration [the only
factor considered here], (ii) the opportunity or likelihood of
fabrication, (iii) the inducement to fabrication, (iv) the actual
excitement of the declarant, (v) the place of the declaration, (vi) the
presence there of visible results of the act or occurrence to which
the utterance relates, (vii) whether the utterance was made in
26
Noel v. Commonwealth , 76 S.W.3d 923, 926 (Ky. 2002) .
10
response to a question, and (viii) whether the declaration was
against interest or self-serving . 27
We believe the statement to Buchanan fits squarely within the excited
utterance exception to the hearsay rule. In the case at hand, the lapse of time
between M.B.'s statement to Buchanan and the event was negligible because it
occurred immediately after the perpetrator was seen leaving M.B .'s residence;
the opportunity for fabrication was negligible ; no inducement to fabrication has
been cited; the actual excitement of the declarant was shown-it was alleged
she was yelling and crying; M.B . was just outside the place of the occurrence ;
there was no questioning before the statements were yelled; and, finally, the
statement was not against her interest .
As for M.B .'s later statement to her daughter, the connection is less
clear: more time had elapsed for her to get to her daughter's (but, apparently,
merely minutes) ; there was more chance of fabrication ; no inducement to
fabrication was shown, however; M.B. was still upset and excited according to
the daughter ; she was removed from the place of the events; she was not
questioned by her daughter to evoke the response; and the statement was not
against her interest. While this statement is a little more questionable than
that made to Buchanan, it appears that M.B . was still upset and still seeking
help . Moreover, the statement was so similar to the earlier one that we believe
both should be similarly categorized as excited utterances.28 Therefore, we
Souder v. Commonwealth , 719 S.W.2d 730, 733 (Ky. 1986) .
28 M.B. made further statements to her daughter in addition to her statement that she
had been raped. These statements were in the nature of describing the perpetrator
27
affirm the Court of Appeals' reversal of the trial court's exclusion in limine of
these statements .
III . CONCLUSION.
The statements given to the SANE nurse were testimonial under the
framework provided in Crawford and in the Supreme Court cases that follow its
rule . And the excited utterances heard by lay witnesses were not testimonial
under that framework. So we reverse the Court of Appeals insofar as it
reversed the trial court's exclusion of the SANE nurse's testimony, but we
affirm the Court of Appeals' reversal of the trial court's ruling that excluded
from trial the statements to Buchanan and the statements discussed in this
opinion as having been made to M.B.'s daughter . We remand the case to the
trial court for further proceedings in accordance with this opinion .
Cunningham, Noble, Schroder, Scott, and Venters, JJ., sitting.
Cunningham, Noble, Scott, and Venters, JJ., concur. Schroder, J ., concurs in
result only by separate opinion. Abramson, J ., not sitting.
so that others might identify him. The Commonwealth did not cite any of these
statements in the motion in limine; and they were not considered by the courts
below, nor by this Court, to have met any hearsay exception, and they may not be
used at trial.
12
COUNSEL FOR APPELLANT:
V. Gene Lewter
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Kenneth Wayne Riggs
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
RENDERED: FEBRUARY 1.9, 2009
TO BE PUBLISHED
,,VUyrrMr (~Vurf
of
2007-SC-000077-DG
rnfurhv
TYRONE ANTOINE HARTSFIELD
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2005-CA-001209-MR
FAYETTE CIRCUIT COURT NO . 03-CR-00458
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE SCHRODER
CONCURRING IN RESULT ONLY
I concur with the majority as to the SANE nurse. As to the statements
made to the passerby and daughter, I concur in result only based on the legal
analysis.
The first step in a Crawford analysis (before any hearsay exception may
be considered) requires a determination of whether the statements at issue are
testimonial or nontestimonial. Davis v. Washington , 547 U.S . 813 (2006) ;
Rankins v. Commonwealth, 237 S .W.3d 128 (Ky. 2007) . 1 Deciding whether the
statements at issue are testimonial in this case presents a puzzle . Neither
Crawford nor Davis limited testimonial statements to those obtained by law
enforcement or their agents . And, Crawford itself appears to support the trial
The majority's analysis appears to follow that of the Arizona Court of Appeals in State v.
Aguilar, 107 P.3d 377 (Ariz. Ct. App. 2005), a pre-Davis case cited in the Commonwealth's
brief.
court's ruling that the admission of these statements would violate the
Confrontation Clause. Crawford , 541 U .S. at 44, 62 (discussing Raleigh's Case,
2 How. St . Tr. 1 (1603)) . However, Crawford was subsequently followed by
Davis's holding that even accusatory statements which are in the nature of
seeking help for an ongoing emergency are generally nontestimonial .2 The
Court's explanation in Davis was lacking, but seemed to center on the
dissimilarity between a present-tense statement proclaiming an emergency (i .e .
"what is happening"), and in-court testimony (i.e . "what happened"), the former
not being a functional equivalent of the latter.3 This creates a dilemma in the
present case, because, unlike the statements to the 911 operator in Davis,
describing events as they occurred, the statements here, while clearly in the
context of an ongoing emergency, referred to a criminal event which had
already taken place (recognized by Davis as characteristic of a testimonial
statement) . 547 U .S . at 827-830 . Further, in light of the facts of this case, we
cannot ignore Davis's reference to an old English case, King v . Brasier , wherein
"a young rape victim, `immediately on her coming home, told all the
circumstances of the injury' to her mother." Id. at 828 (quoting Brasier, 168
Eng. Rep. 202 (1779)) . The Court appears to infer that these statements were
testimonial, because the story was an account of past events. Id.
a
3
Davis had not been rendered at the time the trial court made its ruling on the admissibility
of the statements at issue on May 16, 2005.
547 U.S. at 827-828 . While Davis articulated a "primary purpose" test regarding
interrogations by law enforcement, the Court clarified that "it is in the final analysis the
declarant's statements, not the interrogator's questions, that the Confrontation Clause
requires us to evaluate." Id. at 822, n . l .
In the present case, even though the admission of the statements at
issue appears to violate the Confrontation Clause under Crawford , I believe
that the statements fall under the ongoing emergency exception created by
Davis . The statement to the passerby was virtually contemporaneous with the
crime, made as the victim/declarant was escaping. The record further
indicates that the victim/ declarant ran to the daughter's in her escape, gained
entry, and they locked the door. I believe there was still an ongoing
emergency.4 Unlike Brasier, the statement to the daughter was a cry for help,
not an account of "all the circumstances of the injury." Therefore, under Davis,
I believe both statements are nontestimonial .
Having first determined that the statements to both the passerby and
daughter are nontestimonial, the issue then becomes whether the statements
are admissible under any hearsay exception. Crawford , 541 U.S . at 68 . I agree
with the majority that both statements would qualify as excited utterances.
While lacking specificity, the record indicates that all of the events were close in time and
location .
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