*1 suggest instructions likely that inser- language
tion of the necessary for the
fourth-degree instruction, i.e., assault “in-
tentionally physical caused injury Crys- fists,”
tal Williams striking her with his
may error, have created a clerical unno- parties,
ticed second-degree instruction,
assault which used the same (albeit
language with the additional lan-
guage required) that “fists danger- were a
ous instrument as defined under instruc- Thus,
tion no. 5.”2 for reasons that
reversal this case arose from a first-
impression reconciliation of the conflict be- 500.080(3)
tween KRS and KRS
508.020(l)(b), which, turn, recognized
the trial error, court’s instructional
only then a secondary finding of “insuffi- ciency evidence, the error at hand ”
was ‘trial error’ and the bar of double of
jeopardy apply. does not
Tyrone Antoine HARTSFIELD,
Appellant,
v. Kentucky,
COMMONWEALTH of
Appellee.
No. 2007-SC-000077-DG.
Supreme Court of Kentucky.
Feb. "Generally, instructions should be based prejudicial on deemed unless the defendant was trial, Commonwealth, evidence introduced at Taylor vari- misled.” ance language (citations between the of the indictment (Ky.1999) S.W.2d 359 n. 1 language omitted). and the of the instruction is not *2 Appeals,
We reverse the Court conclude that the part, because we investigative to an victim’s *3 nature; and nurse were at trial their admission into would rights. Hartsfield’s confrontation violate Appeals, But affirm the we Court part, ut- because we conclude excited by lay terances made the victim to wit- nature; nesses not testimonial in their admission at trial would not violate the remand to Confrontation Clause. We proceedings the trial court for further con- opinion. sistent with I. AND FACTUAL PROCEDURAL BACKGROUND. grand jury A indicted on Hartsfield Lewter, Department Y. Gene of Public charges multiple involving sexual crimes Frankfort, KY, Advocacy, Ap- Counsel for victims, separate three female one of pellant. charged whom was M.B. The indictment first-degree rape Hartsfield the Conway, Jack Attorney General of Ken- first-degree sodomy the of M.B. M.B. died tucky, Wayne Riggs, Kenneth Assistant trial, before the indictment came to General, Attorney Attorney Office of the pi'ompting motion to Hartsfield’s dismiss General, Frankfort, KY, Ap- Counsel for relating the in. the counts indictment pellee. ground M.B. on the that M.B.’s statements concerning alleged inad- crimes were Opinion of the by Chief Justice hearsay. missible The trial court denied MINTON. the motion to dismiss. The Common- wealth then moved in limine to establish granted Tyrone We Hartsfield’s motion affirmatively admissibility of M.B.’s for discretionary of a of Ap- review statements. The first of the con- motions peals opinion that held that prosecu- nurse; cerned statements to a M.B.’s tion’s use at trial of by statements made second motion concerned two statements alleged victim, sexual assault died af- who separate following two individuals ter the return of the indictment but before incident, which were described as ex- trial, would violate the Sixth Amend- cited utterances.2 granted ment’s Confrontation Clause. We signifi- review of this issue because of the assaults, Following sexual cant impact the United States M.B. hospital had been taken to a where Court’s of the Confrontation she was examined a Sexual Assault (abbreviated Washington1 on has Nurse Examiner SANE and nurse).3 practice Kentucky. informally trial referred to as a SANE (KRS) 3.Kentucky 1. 541 U.S. L.Ed.2d S.Ct. Revised Statutes (2004). 314.011(14) states that: "‘Sexual assault registered nurse examiner’ means a nurse (KRE) 803(2). Kentucky completed required Rules Evidence who has education run afoul of the Confrontation Clause be rape related the details of the M.B. nurse, samples also collected M.B. for SANE who cause not made kit. using rape test causing testify on purpose nurse her behalf. by the for the statements claimed As excited to be admissible as Commonwealth
utterances,
stated that
Commonwealth
II. ANALYSIS.
immediately after the
M.B. fled her house
of the admis
determination
rape
passerby
and encountered a
named
of evidence is within
sound
sibility
crying
Malcolm Buchanan. M.B. was
court.6 A
discretion of the trial
trial court
*4
me;
In
yelled,
raped
raped
“He
he
me.”4
its decision
its discretion when
abuses
addition,
reported
the
that
Commonwealth
unreasonable, unfair,
unsup
or
arbitrary,
daughter’s
M.B. ran to her
house and told
In
principles.7
ported by
legal
sound
raped.
daughter
just
her
she had
been
instance,
the trial
we must resolve whether
The record indicates M.B.’s statement
legal principle.
the
applied
court
correct
in
daughter
her
made close
time and
that the admission of
Hartsfleld asserts
alleged
proximity
rape.
his
any of
would violate
these statements
Following
hearing,
a
the trial court ex
under
right to confront adverse witnesses
abridg
all
cluded
of the statements as
Confrontation
the Sixth Amendment’s
right
ment of
to cross-examine
Hartsfield’s
Supreme
United States
Clause. The
him. The court fur
against
the witnesses
Washington8
in
held
Crawford
M.B.
regarding
ther ordered the counts
precludes
the Confrontation
rulings
In
in
light
be dismissed.
of a
the statements
witness
admission of
limine, the
and Hartsfleld
Commonwealth
trial if
witness’
testify
unavailable to
at
plea agreement whereby
then reached
“testimonial,”
out-of-court statements
the other
pleaded guilty
Hartsfleld
opportunity
prior
had a
unless the accused
amended counts of the indictment.5
Before
to cross-examine
witness.9
tri
appealed
then
from the
Commonwealth
interpreted
had been
Crawford, the Clause
the motions in
overruling
al court’s order
wit-
of an unavailable
to allow admission
dismissing the counts of the
limine and
if
pos-
out-of-court statement
ness’s
Ap
indictment as to M.B. The Court
reliability. Be-
adequate
sessed
indicia
reversed the trial court on
belief
peals
admissibility question
Crawford,
fore
that all of the statements
covered
fell
within
and,
the statement
hearsay exceptions
particular,
in
that was whether
pos-
hearsay exception
firmly
nurse did not
rooted
the statements to the SANE
to twelve
was sentenced
experience and maintains a cur-
misconduct and
and clinical
time
on
Nursing]
jail,
credit for
served
from
months
with
[of
rent credential
the board
provided
charges.
to conduct fo-
under KRS 314.142
of-
examinations of victims of sexual
rensic
protocol
the medical
issued
Commonwealth,
fenses under
822
55 S.W.3d
6. Love v.
Kentucky
Medical Ex-
State
the Office
(Ky.2001).
216B.400(4)[.]”
pursuant to KRS
aminer
English, 993 S.W.2d
Commonwealth v.
7.
According
po-
to Buchanan's statement to
4.
(Ky.1999).
945
record,
Buchanan also
lice contained
leaving
hastily
spotted
perpetrator
L.Ed.2d
124 S.Ct.
8. 541 U.S.
just before M.B. came out.
the house
(2004).
guilty plea to amended
5. Hartsfleld entered a
53-54,
charges
counts of sexual
Id.
of two misdemeanor
particularized guarantees
sessed other
apply.
the definitive test to
And the Court
trustworthiness.10 The
Court in
say
hearsay
did
nontestimonial
where
rejected
as incom-
issue,
is at
it is consistent
with
Consti-
patible
Framers’ intent in creat-
development
tution to allow the states the
ing the Confrontation Clause.11
hearsay
of their own
law.16
Crawford,
Since
the threshold examina-
Crawford,
Since
the Supreme
tion to determine a Confrontation Clause
question
po
Court addressed the
of which
proffered
violation is whether the
out-of-
lice interrogations qualify as testimonial in
court statement
Examples
was testimonial
decisions,
Washington,
two
Davis v.
of testimonial
given
Craw-
case,
companion
its
Hammon v. Indiana.17
prior
included
testimony
prelimi-
at a
ford
held that a
domestic
nary hearing,
grand jury,
before a
or at a
violence
help
victim’s
call for
and her
trial;
former
and statements
re-
responses to the emergency operator’s
sponse to police interrogations.12 But the
questions
and,
were nontestimonial
there
Supreme Court did not
provide
otherwise
fore,
subject
to the Confrontation
*5
comprehensive
a
definition of what is en-
Hammon,
In
Clause.
the police interview
compassed by the term testimonial.
of a
police
victim her home after
re
The Court referenced several “formula-
sponded
report
to a
aof domestic distur
tions of ...
‘testimonial’ statements” in
bance contained testimonial statements
(1)
opinion:
in its
“ex
in-
'parte
subject
were
to the Confrontation
court testimony or its
equiva-
functional
distinguished
Clause. The Court
is,
lent —that
affidavits,
material such as
statements in Hammon based on the role
examinations,
custodial
prior
testimony
of the police at the time the statement was
the defendant was unable to cross-
obtained:
examine, or similar pretrial
statements
Statements
are
that declarants
nontestimonial
would
when
reasonably expect to
(2)
be used
made in the
police interroga-
course of
prosecutorially”;13
“extrajudi-
cial
...
tion
under circumstances objectively
contained
formalized
materials,
testimonial
dicating
primary
that the
affidavits,
purpose
such as
depositions, prior
testimony,
interrogation is to
police
or
enable
assis-
confes-
(3)
sions”;
tance to meet
ongoing emergency.
“statements that
an
made under
They are
circumstances which
the circum-
would
when
lead an objective witness reasonably
objectively
stances
indicate that there is
believe that the statement would be avail-
no such ongoing emergency, and that
able for use at a later trial.”
The
the primary purpose
of the interrogation
did not
select
of these formulations as
prove
is to establish or
past
po-
events
Roberts,
56, 66,
51-52,
10. Ohio v.
448 U.S.
100 S.Ct.
14.
Id. at
(citing
Following precedent, to the excited utterances Appeals instance, we conclude that it agree in the first but we erred correctly when reversed trial court’s determined that the statements ruling in limine excluding from use at trial identified meet the criteria be admissi gave the statements M.B. the SANE hearsay ble the excited utterance under 803(2), nurse. These statements According to KRE exception. Hartsfield never had the describing excited utterance is a statement opportunity to cross-examine and so startling event condition made while are barred the Confrontation Clause. the declarant was under the stress of ex citement caused the event or condition. B. The Excited Hearsay Utterance For an out-of-court statement to meet that Statements Not Were Testimonial. definition, the declarant’s condition at the The two statements that the Com give impression time must monwealth wants to introduce as excited excited, spontaneous, statement was or im present issue, utterances a more difficult pulsive product rather than the of reflec since only Davis and Hammon address eight tion and deliberation.26 factors happens what when given statements are if determining consider a statement is to law enforcement or surrogates. their an excited utterance are: issue, The excited utterances at (i) act lapse time between main lay witnesses, do not fit within the Craw *7 only and the declaration factor con- [the and Davis formulation of testimonial ford (ii) here], sidered opportunity the statements. We conclude that the Court (iii) fabrication, likelihood of the induce- of Appeals correctly reversed the trial (iv) fabrication, ment to the actual ex- court excluding these statements as (v) declarant, the place citement of the violative of the Confrontation Clause. (vi) declaration, presence the there of of the act or visible results An excited utterance cannot in be occurrence to the utterance re- which troduced into if it is determined (vii) lates, the utterance whether was to violate the Confirontation be (viii) in response question, made to a and cause it is a testimonial statement. The the declaration against whether was statements in the case at bar did not bear or self-serving.27 terest similarity to the testimonial statements at issue in in Bu We believe statement to Crawford. the case at hand spontaneous squarely were and chanan fits within the excited ut by unprompted questioning. exception hearsay These state terance to the rule. hand, ments not lapse testimonial because the case at of time between Commonwealth, Commonwealth, Noel 76 S.W.3d 27. Souder v. 719 S.W.2d (Ky.2002). (Ky.1986). in provided and the and M.B.’s statement to Buchanan work Crawford negligible because it occurred its rule. event was Court cases follow immediately perpetrator by lay after was the excited utterances heard And residence; oppor- leaving seen M.B.’s not testimonial under witnesses tunity negligible; for fabrication no was So we reverse framework. cited; has been
inducement to fabrication trial insofar as it reversed the Appeals the actual excitement of the declarant was tes- court’s exclusion of the SANE nurse’s yelling and shown—it was she was Ap- timony, but affirm we crying; just place M.B. was outside ruling peals’ reversal of the trial court’s occurrence; questioning there nowas from trial the statements to that excluded and, yelled; before the statements were Buchanan and the statements discussed finally, against the statement not her was opinion having this as been made M.B.’s interest. to the trial daughter. remand the case We for further accor- proceedings court As for M.B.’s later statement opinion. dance with this daughter, her the connection is less clear: elapsed get more time had for her to CUNNINGHAM, NOBLE, (but, daughter’s apparently, merely her VENTERS, SCHRODER, SCOTT, and minutes); chance of fabri there was more NOBLE, JJ., CUNNINGHAM, sitting. cation; no to fabrication inducement was VENTERS, JJ., SCOTT, concur. and shown, however; upset M.B. still was SCHRODER, J., only in result concurs according daughter; to the she was excited J., ABRAMSON, not separate opinion. events; from the she place removed sitting. daughter not her questioned was response; the statement evoke SCHRODER, Opinion by Justice against her interest. While only. concurring in result questionable little more is a as to the majority I concur Buchanan, appears than that made to As to the statements SANE nurse. seeking upset that M.B. was still and still daughter, I concur passerby to the Moreover, help. the statement was so analysis. legal on the only result based to the earlier one that believe similar we step in a The first similarly categorized should be both (before hearsay exception may be con Therefore, affirm excited utterances.28 we sidered) requires a determination of the trial Appeals’ the Court of reversal are testi the statements issue whether in limine of these state court’s exclusion *8 Davis v. monial or nontestimonial. Wash ments. 813, 2266, 165 547 ington, U.S. III. CONCLUSION. (2006); 224 Rankins v. Common L.Ed.2d wealth, Decid (Ky.2007).1 S.W.3d 128 to the SANE 237 given The statements are the statements at issue ing the frame- whether nurse were testimonial under Court, hearsay exception, any her this to have met 28. M.B. made further statements to they may at trial. not be used daughter in to her that she addition statement raped. These were in had been perpetrator analysis appears describing majority's so to follow the nature of 1. The Appeals identify in State might him. The Com- of the Arizona Court that others that (2005), 377 Aguilar, 210 Ariz. 107 P.3d did not cite of these state- monwealth limine; pre-Davis in the Commonwealth's they were a case cited in the motion in ments below, by by nor brief. not considered the courts
247 testimonial, presents puzzle. testimonial this case a these statements were because past Neither nor Davis testi- story limited was an account events. Crawford to monial statements those obtained Id. And, agents. enforcement or them case, present though In the even itself tri- appears support to Crawford at ap- of the statements issue admission ruling al court’s admission pears violate the Confrontation these statements violate the Con- would Crawford, under I that the state- believe Crawford, frontation Clause. 541 U.S. ongoing emergency ments fall under the 62,124 (discussing Raleigh’s 1354 S.Ct. created The exception by Davis. state- Case, (1603)). However, 2 1 How. St. Tr. passerby virtually ment to the con- was subsequently was followed crime, temporaneous with the made as the holding
Davis’s
that even accusatory state-
escaping.
was
The record
victim/declarant
seeking
ments which are in the nature of
further indicates that the victim/declarant
for
help
emergency
an ongoing
gener-
are
daughter’s
escape, gained
ran to the
in her
nontestimonial.2 The
ally
Court’s explana-
door. I
entry, and
locked the
believe
lacking,
tion Davis
but
seemed
still an ongoing emergency.4
there was
dissimilarity
center on the
pres-
between a
Brasier,
Unlike
ent-tense statement proclaiming an emer-
help,
daughter
cry
was a
not an ac-
(i.e.
gency
happening”),
“what is
“all
inju-
count of
the circumstances of the
(i.e.
testimony
court
happened”),
“what
Davis,
Therefore,
ry.”
I
under
believe
being
former not
functional equivalent
both statements are nontestimonial.
latter.3
This creates a
in the
dilemma
case,
present
because, unlike the state-
first
Having
determined
the state-
ments to the 911
operator
de-
passerby
ments to both the
and daughter
scribing
they occurred,
events as
the state-
nontestimonial,
are
then
the issue
becomes
here,
clearly
ments
while
the context of whether the statements are admissible un-
ongoing
emergency, referred to a crimi-
any hearsay
Crawford,
der
exception.
nal event which
already
had
taken place
68, 124
I agree
U.S. at
S.Ct. 1354.
(recognized by
as
Davis
characteristic
majority
that both statements would
statement).
Davis’s reference to an old English Brasier,
King v. rape “a young wherein
victim, home, ‘immediately on her coming all the injury1
told circumstances of the
her mother.” Id. at S.Ct. Brasier,
(quoting Eng. Rep. 202
(1779)). appears to infer *9 had interrogator’s questions, 2. Davis not been rendered at the time the Confronta- ruling admissibility trial court made on the its requires tion Clause us evaluate.” Id. May statements at issue on 1, n. S.Ct. 2266. 827-828, U.S. at S.Ct. 2266. While lacking specificity, the 4.While record indi- "primary purpose” Davis articulated a test cates that all of the were close in time events enforcement, regarding interrogations and location. the Court clarified that "it final statements, analysis the declarant's