State v. Alers, 2015 Vt. 74

On Aug. 2, 2013, eyewitnesses saw defendant Lawrence Alers grab A.P. around the neck, drag her toward a vehicle, and the vehicle lurch toward her; A.P. appeared distraught.
Police arrived ~10–15 minutes after a panicked call; several officers were already with A.P. when a responding officer spoke with her.
The officer testified (over defense hearsay objection) that A.P. said defendant grabbed her from behind, dragged her toward his vehicle, that she was scared, and that she felt pain (rated about a 4/10).
A.P. did not testify at trial; defendant was acquitted of aggravated assault but convicted of simple assault by recklessly causing bodily injury.
Trial court admitted the officer’s testimony as an excited utterance; it did not make findings on whether the statements were testimonial; defense preserved a Confrontation Clause objection.
The Vermont Supreme Court found the statements testimonial and their admission violated the Sixth Amendment; the error was not harmless, but the remaining evidence was sufficient to support retrial (not an acquittal).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether officer’s testimony recounting A.P.’s out-of-court statements was admissible over Confrontation Clause	Statements were nontestimonial (excited utterance) and admissible; primary purpose was addressing an emergency	Statements were testimonial; admission violated Crawford/Davis absent declarant’s live testimony and cross-examination	Admission violated the Confrontation Clause because statements were testimonial (officer was eliciting a statement, not resolving an ongoing emergency)
Whether, absent the improperly admitted hearsay (A.P. saying she felt pain), the State’s evidence was insufficient to prove bodily injury required for simple assault	Even without the hearsay, eyewitness testimony (chokehold/dragging, A.P. screaming/distressed) permitted a reasonable jury to infer bodily injury	The hearsay was the State’s primary evidence of pain; without it the State failed to prove bodily injury beyond a reasonable doubt	The remaining evidence could support an inference of bodily injury; conviction reversed and case remanded for a new trial (no acquittal)

Crawford v. Washington, 541 U.S. 36 (interrogations by law enforcement are testimonial; Confrontation Clause requires prior cross-examination for testimonial statements)
Davis v. Washington, 547 U.S. 813 (distinguishes testimonial vs. nontestimonial statements by reference to whether primary purpose is to resolve ongoing emergency)
Michigan v. Bryant, 131 S. Ct. 1143 (statements and interrogator/declarant actions both inform primary purpose inquiry)
State v. Shea, 184 Vt. 453 (Vt. 2008) (applies Crawford/Davis; distinguishes initial emergency-response questioning from later testimonial questioning)
State v. Mechling, 633 S.E.2d 311 (W. Va. 2006) (statements made after suspect departed and deputies’ questioning held testimonial)