IN COURT OF APPEALS
Reversed and remanded
Hennepin County District Court
File No. 04070912
Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)
D. Nyvold, Richard J. Malacko, Suite W-1610,
Considered and decided by Minge, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
Assault victim’s statements that respondent choked her, hit her on the head with a cooking pot, and threatened to kill her with a knife, made in a narrative fashion to police officer as officer was assessing and treating victim’s obviously fresh injuries were not “testimonial” statements within the ambit of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
The state appeals the district court’s pretrial ruling that the victim’s statements to a police officer describing how appellant threatened her and inflicted her obviously fresh injuries were testimonial and therefore inadmissible at trial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Because we conclude that the district court erred in determining that the statements were testimonial, we reverse and remand to the district court for a determination of admissibility based on exceptions to the hearsay rule.
N.A., who was crying and shaking as
she talked to
Officer Robert Olson arrived at the
scene about one or two minutes after
Respondent was charged with one count of domestic assault and one count of making terroristic threats. When N.A. failed to respond to the state’s subpoena, the state moved for admission of her statements under the excited-utterance exception to the hearsay rule. The district court concluded that everything except N.A.’s initial statement “My boyfriend just beat me up,” was testimonial and inadmissible under Crawford. The district court did not reach the issue of whether the statements were excited utterances or fell under any other exception to the hearsay rule. This appeal by the state followed.
Did the district court err in ruling that N.A.’s statements made near the scene of her assault as an officer assessed and treated her injuries were testimonial and therefore inadmissible under Crawford v. Washington?
I. Standard of review
the state appeals from the pretrial ruling of a district court suppressing
evidence, an appellate court will reverse the district court’s determination
only if the state demonstrates clearly and unequivocally that the district
court erred and that, unless reversed, the error will have a critical impact on
the outcome of the trial. State v. Webber, 262 N.W.2d 157, 159 (
Respondent does not dispute that the district court’s ruling has a critical impact in this case because, without N.A.’s statements, there is no evidence to support the felony charge of terroristic threats.
II. Are N.A.’s statements testimonial?
Crawford, the United States Supreme
Court held that testimonial hearsay evidence is only admissible in a criminal
trial against a defendant when the declarant is unavailable and the defendant
has had a prior opportunity to cross-examine the declarant about the
evidence. Crawford v.
Crawford left the definition of “testimonial” open, but noted various formulations of “testimonial” statements:
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, . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions, [and] 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 .
Krasky, 696 N.W.2d at 819 (quoting Crawford, 541
In a recent case involving whether statements made in a 911 call were testimonial under Crawford, this court found it unnecessary to determine whether statements made by assault victims to police officers who responded to their 911 call are “testimonial,” but we stated:
We are not convinced that a police response to an incident when the victims are in distress and primarily concerned with ensuring that their assailant has been apprehended satisfies any of the formulations or examples of testimonial hearsay provided by the Supreme Court. . . . This dialogue, although certainly part of an investigative process, is not an “interrogation” and does not result in a formal statement . . . .
The statements are fundamentally different from “testimonial” statements taken in anticipation of trial. They lack the formalized nature of a deposition, affidavit, interrogation, or grand jury testimony. [The victims’] statements are highly unlikely to be calculated for effect in future legal proceedings. Their narrative statements following the stressful events are neither “solemn” declarations . . . . nor accounts of a crime made “with an eye toward trial.”
State v. Wright, 686 N.W.2d 295, 305 (
In this case, the district court found that the information at issue:
was in response to questioning by the officer. There was no testimony that was done to effect an arrest. It was clearly done to obtain evidence that could be used at trial. [N.A.] knew that she was no longer in danger as she was safely in the presence of a police officer. She would be less deeply affected by the trauma of the situation. 15 to 20 minutes is sufficient time to reflect on the evening’s events and provide detailed information. It is clear to this court that this is information that a reasonable person would be expected—could expect to be used prosecutorially.
state argues that to be testimonial, N.A.’s statements had to have been made in
response to “structured police questioning,” citing State v. Burrell,697 N.W.2d
579, 600 (Minn. 2005). In Burrell, there was a Crawford challenge to admission of a
tape-recorded statement by defendant’s mother taken at the police station when
defendant’s mother voluntarily went to the police station to inquire about the
circumstances of her son’s arrest.
are many cases from other jurisdictions that have reviewed initial
police-victim interaction at the scene of an incident under Crawford. Although there is a great deal of conflict
among the cases, a majority of post-Crawford cases involving initial
police-victim interactions at the scene hold that the situations do not involve
interrogation and that resulting statements are not testimonial. See,
e.g., State v. Kilday, 20 Cal.Rptr.3d 161 (Cal. Ct. App. 2004) (holding that
statement received when officers were responding to a call from hotel manager
and encountered victim in lobby when area was unsecured and situation uncertain
was nontestimonial); People v. King, 2005
WL 170727, at *6, ___ P.3d ___ (Colo. Ct. App. 2005) (holding that when a crime
victim makes an excited utterance to a police officer, in a noncustodial
setting and without “indicia of formality,” the statement is nontestimonial); People v. Mackey, 785 N.Y.S.2d 870, 874
(N.Y. Crim. Ct. 2004) (holding that statements made by witness who approached
officer that were not in response to structured police questioning, not in a
formal setting or a formalized document, and the primary purpose of the statements was to seek protection, were
nontestimonial); Hammon v. State, 829 N.E.2d 444, 458 (Ind. 2005)
(holding victim’s statements to officer relating “basic facts” shortly after
the incident occurred were not testimonial).
Many courts have also indicated that a narrative response to a single question from a police officer generally does not indicate “police interrogation” or a testimonial statement. See, e.g. Anderson, 111 P.3d at 353 (consulting dictionaries for the “colloquial” meaning of “interrogation,” noting that the American Heritage Dictionary 4th ed. 2000, defines “interrogate” as “to examine by questioning formally or officially,” and that Merriam-Webster Dictionary of Law (1996 ed.) defines it as “to question formally and systematically,” and holding that a police officer’s single question (“[w]hat happened?”) to assault victim was not an interrogation); Marc v. State, ___ S.W.3d ___, 2005 WL 1294969, at * 8-9 (Tex. App. 2005) (holding that statements of two crying, “almost hysterical” rape victims describing assaults and identifying suspect to police three hours after the fact and twenty minutes after the fact, respectively, were not “testimonial,” despite indication that officer asked one of the victims “what had happened,” and defendant’s argument that statements were “rational, thinking responses to questions posed by the police” resembling police interrogation); see also Anderson, 111 P.3d at 357 (J. Mannheimer, concurring) (stating, “[a]s used in everyday speech, ‘interrogate’ has a more limited meaning than ‘ask’ or ‘inquire’ or even ‘question.’ An ‘interrogation’ is a formal, systematic questioning that is conducted to advance an official investigation . . . Prisoners are interrogated. Suspects are interrogated.”).
The reasoning in these cases, together with the Burrell decision, leads us to conclude that the district court erred by holding that N.A.’s statements were testimonial simply because they were given in response to some questioning by the officer.
We further conclude that
the evidence does not support the district court’s finding that the questioning
“was clearly done to obtain evidence that could be used at trial.” When
We also reject, as error,
the district court’s use of its finding that N.A.’s statement “is information
that a reasonable person would . . . expect to be used prosecutorially” as a basis for holding that the statement was
testimonial. One of the formulations of
a “core class of ‘testimonial’ statements” in Crawford is “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.” 541
Some decisions from other jurisdictions that have relied on this formulation to identify whether a statement is testimonial suggest a standard that results in virtually every statement implicating a person in a crime being classified as testimonial. For example, in Lopez v. State, 888 So.2d 693, 699-700 (Fla. Dist. Ct. App. 2004), the court, rejecting the assertion that an excited utterance can never be testimonial, stated that:
a startled person who identifies a suspect in a statement made to a police officer at the scene of a crime surely knows that the statement is a form of accusation that will be used against the suspect. In this situation, the statement does not lose its character as a testimonial statement merely because the declarant was excited at the time it was made.
Although we agree with
the proposition that an excited utterance can be testimonial, we
note that Crawford does not discuss
“accusatorial” statements, and we have rejected such a low threshold for
determining what gives rise to reasonable knowledge that a statement will be
used at a later trial. See Wright, 686 N.W.2d at 302
(concluding that statements to 911 operator identifying defendant as assailant
“do not fit within the definitions or the examples of ‘testimonial’ statements”
contained in Crawford). In this case, N.A. told
Although Wright did not rule on whether similar statements given to police in that case were testimonial, given the paucity of any other binding authority in this area, we find the comments in Wright about the nature of such statements to be very instructive. We conclude that the circumstances of N.A.’s statements do not bring those statements within any of the formulations or examples of testimonial statements set out in Crawford. We recognize that Crawford leaves open the issue of whether other types of statements could be found to be testimonial, but no other argument or authority has been presented by respondent that would lead us to conclude that N.A.’s statements were testimonial under Crawford.
III. Admissibility of N.A.’s statements
we have concluded that N.A.’s hearsay statements are nontestimonial, their
admissibility at trial depends on whether the statements are admissible under
district court erred in concluding that an injured victim’s statements made to
a police officer within nine minutes of a 911 call, concerning the identity of her
assailant and the circumstances of the assault were testimonial under Crawford v. Washington. Because admissibility of the victim’s
nontestimonial hearsay statements depends on whether the statements constitute
an exception to
Reversed and remanded.
 N.A.’s sister was present during the assault and talked to Olson at the house. She also failed to respond to the state’s subpoena, and the district court denied the state’s motion to admit her statements based on the conclusion that those statements were also testimonial. The state has not appealed that ruling.
 We reject the state’s
argument that the entire category of excited utterances is exempt from Crawford because there was a recognized
exception for excited utterances at common law.
Crawford recognized only a
single exception for dying declarations as “sui generis.” 541