336 S.W.3d 499
Mo. Ct. App.2011Background
- McKinney was convicted by a jury of second-degree domestic assault against Victim, with prior offender status enhancing sentence.
- Victim and McKinney dated briefly in 2009; Victim became pregnant during the relationship.
- On June 29, 2009, after the breakup, McKinney followed Victim to a bus stop and then to Salama's area, pressing for reconciliation.
- McKinney assaulted Victim by choking, punching, then stomping on her head; a passerby called 911 during the attack.
- A 911 recording of the call was admitted at trial over hearsay and Confrontation Clause objections; defense argued error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 911 tape is admissible hearsay under present sense impression | McKinney: tape is hearsay without exception | McKinney: tape qualifies as present sense impression with trustworthiness and corroboration | Admissible; meets present sense impression exception |
| Whether admission violated Confrontation Clause | McKinney: declarant not testifying, violates confrontation | McKinney: statements describe ongoing emergency; not testimonial | Not testimonial; Confrontation Clause not violated |
Key Cases Cited
- State v. Bynum, 299 S.W.3d 52 (Mo.App. E.D.2009) (two-step admissibility for 911 evidence)
- State v. Taylor, 298 S.W.3d 482 (Mo.banc 2009) (present sense impression framework and trustworthiness)
- State v. Smith, 265 S.W.3d 874 (Mo.App. E.D.2008) (corroboration matters for present sense impression)
- State v. Cannon, 215 S.W.3d 295 (Mo.App. W.D.2007) (ongoing emergency exception to Confrontation Clause)
- State v. Kemp, 212 S.W.3d 135 (Mo.banc 2007) (emergency context governs testimonial analysis)
- Davis v. Washington, 547 U.S. 813 (U.S. 2006) (distinguishes testimonial vs. nontestimonial 911 statements)