A reminder that an excited utterance can be testimonial

People v. Allen, a decision handed down yesterday by a justice of the Supreme Court of New York (the trial court of general jurisdiction) for Queens County provides a useful reminder that a statement may be testimonial even though it fits within the malleable hearsay exception for excited utterances.

Allen is accused of weapons possession charges.  He allegedly robbed two men, Forbes and Warner, at gunpoint.  Shortly afterwards, three officers saw a gun being pointed out of Allen’s vehicle.  After a high-speed chase, ending conveniently enough outside a precinct station house, Allen was apprehended and handcuffed; one of the officers said that the threat he posed had been “neutralized.”  Forbes and Warner had joined in the chase, and Forbes, with considerable excitement, told the officers that Allen had robbed him.  Allen was initially charged with robbery, among other offenses, but Forbes stopped cooperating, and that charge was dropped; the prosecution proceeded on weapons charges.  The People sought to present the officer’s testimony of Forbes’s statement to prove the robbery on various non-propensity grounds.  (If the statement were admissible for its truth, then it presumably could have supported the robbery charge; perhaps the prosecution had some sense that this was not quite right.)

    The judge, Hon. Joseph A. Zayas, held that Forbes’s statements “land firmly on the testimonial side of the divide.”  He first swatted away, quite properly, an argument that the statements could not have been testimonial because they were unprompted; Davis v. Washington, 547 U.S. at 822 n.1, had already made clear that there’s no merit to that argument.  Moving beyond that, the justice noted that “ it would have been obvious to Forbes, even in his agitated state, that defendant was under arrest and the emergency he allegedly created by speeding through the streets of Astoria, armed with a gun, was over”; he made his statement to the officers “to make them aware of a crime defendant had committed a short time earlier.”  And the conclusion that the statements were testimonial was not undermined by the fact that the circumstances “lacked the formality and structure of, for example, a sit-down interview inside a station house”; the statements were “a weighty allegation leveled in a setting in which it was likely to be immediately acted upon.”

And finally, though the justice had little doubt that the statements would qualify as excited utterances for hearsay purposes, that did not answer the confrontation question.  The statements were still testimonial, because even in his excitement “it must have been obvious to Forbes — or at least it would have been obvious to a reasonable person in his position — that his accusatory statements would be used to further the investigation of the man who was standing before him, in front of a police station, handcuffed and surrounded by officers.” 

These points should all be obvious, and Justice Zayas had good authority for all of them, but not all judges are so clear-headed on these matters, so it was refreshing to see this opinion.