Cleveland v. ColonCleveland v. Colon
{¶ 1} Appellant, Luis Colon, appeals his conviction and sentence for domestic violence in Cleveland Municipal Court. For the reasons stated below, we affirm and remand the matter for the trial court to lift the stay it imposed on the sentence.
{¶ 2} On September 17, 2004, Colon was charged with domestic violence in violation of
{¶ 3} The transcript of proceedings reflects that on August 28, 2004, at approximately 2:30 a.m., Evelyn Rivera and her husband, Adam Pabon, observed a man beating a woman outside their house. Rivera called 911 to report the incident.
{¶ 4} Adam Pabon also identified the defendant as the person who was hitting the victim. Pabon stated that he went outside and told the man not to hit the victim any more, but the man continued with his assault on the victim. Pabon told Rivera to call 911. He observed that the victim was bleeding and appeared “beat up.” When the police arrived, Pabon told the police “he‘s right here,” and Colon began to run. Pabon spoke to the victim approximately one minute later and described her as “really sad,” hurt, bleeding, and crying. Over objection at trial, Pabon indicated that the victim said that it was her boyfriend who had been beating her.
{¶ 5} Officer Brenda Korber testified that she responded to the scene of the assault and observed the victim sitting on a curb with a bruised and “bloodied face.” The officer also observed the victim‘s “clothes were dirty from the ground.” Officer Korber described the victim‘s demeanor as being “upset and crying.” Over objection, Officer Korber testified that the victim indicated she was walking home from a club with another man when Colon came up and began assaulting her in the face and head. When Officer Korber asked the victim who had assaulted her, the
{¶ 6} The objections made by defense counsel regarding the victim‘s statements were overruled by the court based on the excited utterance exception to the hearsay rule. Also, a medical report from the emergency room was introduced, in which the chief complaint by the victim was as follows: “assaulted by boyfriend, hit to face, lips swollen.” We also note that attempts were made to subpoena the victim to testify as a witness, but she did not appear in court to testify.
{¶ 7} At the close of the city‘s case, defense counsel made a Crim.R. 29 motion that was denied by the trial court. The trial court found Colon guilty of domestic violence and sentenced him to one hundred eighty days of incarceration, suspending all but thirty days, and imposed a $1,000 fine, suspending half of the fine. The trial court granted a motion to stay the sentence pending the outcome of this appeal.
{¶ 8} Colon has raised one assignment of error on appeal for our review that provides the following: “Mr. Colon‘s right to confrontation was violated when the prosecution introduced testimonial hearsay statements from the alleged victim.”
{¶ 9} Colon argues that the introduction of the victim‘s statements through the testimony of other witnesses violated his rights under the Sixth Amendment‘s
{¶ 10} We initially address Colon‘s position that “where evidence is precluded under the Confrontation Clause, the Rules of Evidence cannot render it otherwise admissible.” Colon‘s position is that irrespective of whether the victim‘s statements were excited utterances, the Confrontation Clause still applies.
{¶ 11} The Sixth Amendment to the United States Constitution provides the following: “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * * .” In Crawford v. Washington (2004), 541 U.S. 36, 68-69, 124 S.Ct. 1354, the United States Supreme Court held that “testimonial” hearsay statements may be admitted only where the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness regarding the subject matter of the statements.
{¶ 12} Prior to Crawford, courts examining Confrontation Clause claims focused on the reliability of the testimony as required under the Supreme Court decision in Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597. Under Roberts, the declarant‘s statement would be admissible only if it contained “adequate indicia of reliability,” which could be established by showing that the statement either fell within a “firmly rooted hearsay exception” or had “particularized
{¶ 13} The United States Supreme Court in Crawford overruled Roberts as to “testimonial evidence,” holding that “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” 541 U.S. at 68. This position was reaffirmed by the Supreme Court in Davis v. Washington (2006), U.S. , 126 S. Ct. 2266, 2275, N4, 165 L.Ed.2d 224, wherein the Court noted:
”Roberts conditioned the admissibility of all hearsay evidence on whether it falls under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’ Crawford, 541 U.S., at 60, 124 S. Ct. 1354, 158 L.Ed.2d 177 (quoting Roberts, 448 U.S., at 66, 100 S.Ct. 2531, 65 L.Ed.2d 597). We overruled Roberts in Crawford by restoring the unavailability and cross-examination requirements.”
{¶ 14} Thus, a Confrontation Clause analysis cannot be avoided in instances where a testimonial statement falls within a firmly rooted hearsay exception.
{¶ 15} As the Sixth Circuit Court of Appeals recognized:
“In the wake of Crawford, then, it can no longer be said that ‘the judicial inquiry is at an end,’ so long as an out-of-court statement qualifies as an excited utterance or falls within some other ‘firmly rooted’ hearsay exception. Here, if we hold that the district court
properly admitted the out-of-court statements of Defendant‘s wife as excited utterances, there would remain the further question whether these statements were ‘testimonial.’ If so, they could not have been properly admitted at trial absent Mrs. Hadley‘s unavailability as a witness and a prior opportunity to cross-examine her.”
United States v. Hadley (6th Cir. 2005), 431 F.3d 484, 495 (Internal citation omitted).
{¶ 16} Pursuant to the above authority, even where an out-of-court statement falls within a firmly rooted hearsay exception, such as an excited utterance, a court must still consider whether the statement nonetheless should have been excluded under the Confrontation Clause as construed in Crawford. Since only testimonial statements implicate the Confrontation Clause, we must proceed to consider whether the victim‘s statements in this case were testimonial or nontestimonial in nature.
{¶ 17} The Supreme Court provided guidance for determining whether a statement is testimonial or nontestimonial in Davis v. Washington (2006), U.S. , 126 S.Ct. 2266, 165 L.Ed.2d 224. The Supreme Court held that statements made during police “interrogations” are non-testimonial when they are made “under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency” and are testimonial when “the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events
{¶ 18} Likewise, the Ohio Supreme Court has instructed that statements should be viewed “objectively when determining whether they implicate Confrontation Clause protection pursuant to Crawford.” State v. Stahl, 111 Ohio St.3d 186, 192, 2006-Ohio-5482. In Stahl, the Ohio Supreme Court indicated: “For Confrontation Clause purposes, a testimonial statement includes one made ‘under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ Id. at paragraph one of the syllabus (Crawford v. Washington (2004), 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177, followed.)” Additionally, “[i]n determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant‘s expectations.” Stahl, 111 Ohio St.3d at paragraph two of the syllabus.
{¶ 19} In Stahl, the court referred to the circumstances in Davis v. Washington and Hammon v. Indiana (2006), U.S. , 126 S.Ct. 2266, 165 L.Ed.2d 224. The court recognized: “In Davis, the court held that a 911 telephone call made to seek protection from immediate danger did not constitute a testimonial statement for Sixth Amendment purposes. In contrast, the court in Hammon held as testimonial a
{¶ 20} Following the above authority, we find that under the circumstances of this case, the victim‘s statements were nontestimonial in nature. Unlike the circumstances in Hammon, the incident had just concluded when the officer arrived, the defendant had just fled the scene and had not been secured by the police, and the victim was hurt, bleeding and crying. The circumstances objectively indicate that the primary purpose of the interrogation was to enable the police to assist the victim in an ongoing emergency.
{¶ 21} This court recently reached a similar result in State v. Brown, Cuyahoga App. No. 87651, 2006-Ohio-6267. In Brown, the police officers who responded to an assault dispatch observed the victim was bleeding and holding his side and was still excited from what had happened. Id. When the police went to the victim‘s aid, he told the police that his girlfriend had stabbed him and pointed to a vehicle up the street in which his girlfriend was located. Id. This court found the primary purpose of the interrogation was to assist the victim in an ongoing emergency, not to
{¶ 22} In another case, State v. McKenzie, Cuyahoga App. No. 87610, 2006-Ohio-5725, the responding officer observed the victim running out of an apartment waving her arms and yelling. The victim identified a man walking down the street as the person who had just hit her. Id. After the suspect was placed in the police car, the officer conducted a further interview with the victim. Id. This court found that the statements of the victim identifying the defendant as the person who had just hit her were primarily intended for police assistance and were admissible. Id. However, the statements made after the suspect had been detained in the police car were found inadmissible since there was no longer an immediate threat to the victim. Id. Thus, only statements that were made after the suspect was in custody and the emergency of the situation had concluded were found to be inadmissible.
{¶ 23} The facts in this case objectively indicate that at the time the statements were made, the police officer was assisting the victim with an ongoing emergency. The suspect had just left the scene after beating the victim, the victim was bleeding from the face, and she was upset and crying. Additionally, the victim made the statements with the primary purpose of enabling the police to “meet an ongoing emergency,” i.e., to apprehend the person involved. We also note, as discussed
{¶ 24} Where a hearsay statement is found to be nontestimonial, we must continue to evaluate the declaration under the Ohio Rules of Evidence. See State v. McKenzie, supra; see, also, Crawford, 541 U.S. at 68 (reasoning that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law--as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether“). For purposes of our analysis, we must consider whether the statements were inadmissible hearsay or fell within the excited utterance exception to the hearsay rule.
{¶ 25}
{¶ 26} In this case, the evidence reflects that the victim was still under the excitement of a startling event in which she personally was assaulted and the statements were intended to help apprehend the alleged perpetrator of the crime. We find the statements had the requisite guarantees of trustworthiness and were excited utterances.
{¶ 27} Because the statements were excited utterances and nontestimonial in nature, they were properly admitted by the trial court.
{¶ 28} Colon‘s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. The defendant‘s
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., A. J., and PATRICIA ANN BLACKMON, J., CONCUR