Intersecting Hearsay with the Confrontation Clause

State v. Delos Santos (HSC August 19, 2010)

Background. Kenneth Delos Santos was charged with abuse of a family or household member. HRS § 709-906. The prosecution alleged that Delos Santos slapped his girlfriend's face and stomped on her thigh in their Waikiki apartment. Officer Jason Kubo testified that he responded to a domestic disturbance in Waikiki. A hearing was held to determine the admissibility of a statement reported from Officer Kubo. At the hearing, Officer Kubo testified that upon arriving to the scene, he spoke to the girlfriend. Officer Kubo testified that girlfriend said, "my boyfriend beat me up." She also said that she argued with Delos Santos, Delos Santo hit her in the jaw hard enough to make her fall to the ground, and that when she was on the ground Delos Santos stomped on her thigh several times causing pain. The family court concluded that the entire statement was an excited utterance and, thus, admissible. Officer Kubo repeated the statement at trial. At trial, the Complaintant testified and on cross-examination, she could not remember her statements to Officer Kubo. The jury found Delos Santos guilty as charged. Delos Santos appealed. The ICA reversed on the grounds that the statement was not an excited utterance and it should not have been admitted. Judge Fujise dissented. The State petitioned for certiorari.

Excited Utterances. Out-of-court statements made by a declarant are not admissible. Hawai'i Rules of Evidence (HRE) Rule 801 and Rule 802. However, a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not excluded by the hearsay rule. HRE Rule 803(b)(2). The proponent of the statement must, therefore, prove "(1) a startling event or condition existed; (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement relates to the startling event or condition." State v. Machado, 109 Hawai'i 445, 451, 127 P.3d 941, 947 (2006). According to the HSC, there is no question that the startling event was the altercation between Delos Santos and the Complaintant. The sole issue is whether the statements were made under the stress of excitement caused by that event.

In determining the second Machado prong, the court must examine "whether the statement was the result of reflective thought or whether it was rather a spontaneous reaction to the exciting event." Id. at 451, 127 P.3d at 947. To assess that, the HSC turned to various factors, including the time span between the event and the statement, "the nature of the event, the age of the declarant, the mental and physical condition of the declarant, the influences of intervening occurrences, and the nature and circumstances of the statement itself." Id.

The Prosecution Failed to lay Adequate Foundation for the 2d "Statement" . . . The HSC broke down the Complaintant's statements into two parts. The first was the statement, "my boyfriend beat me up." And the 2d statement was an account of what happened. This 2d statement was not, according to the HSC, an excited utterance. The HSC weighed the Machado factors.

First, the nature of the event was violent and supported an excited utterance. Second, the mental and physical state of the declarant also supported an excited utterance. She was really shaken, crying, and very emotional. It suggests that it is not the product of reflective thought. The time span, however, weighed against admission. The prosecutor never established when the 2d statement was given to Officer Kubo. Officer Kubo testified that he had met with the Complaintant for about 30 minutes. It is impossible to know when that statement took place. It is also possible that the 2d statement was not a statement at all but a summary of responses to Officer Kubo's questions.

As for the nature and circumstances of the statement, the HSC held that the 2d statement was probably not an excited utterance because it was made in response to police questioning and it is unclear whether the statement was a "disjointed" or "spontaneous" outburst or a recitation of what happened. A recitation or any other "lengthy, narrative statements are not admissible as excited utterances." Id. at 451, 127 P.3d at 947.

The age of the declarant had no bearing in this analysis. Typically, "child victims of sex abuse are generally allowed more time between the event and the statement[.]" Boyd v. City of Oakland, 458 F.Supp.2d 1015, 1026 (N.D. Cal. 2006). That does not apply here. As for the influence of intervening occurrences, the HSC held that it was essentially a push. Nothing, according to the HSC, intervened between the statement and the event that could have "dulled" the Complaintant's excitement.

So based on these factors and the totality of the circumstances, State v. Clark, 83 Hawai'i 289, 297, 926 P.2d 194, 202 (1996), the 2d statement should not have been admitted as an excited utterance because the prosecution laid no foundation for it.

. . . But There was Enough for the First. The first statement--"my boyfriend beat me up"--was an excited utterance. Again, the HSC turned to the factors outlined in Machado. Essentially, the majority weighed in favor of admission. Even though the statement was in response to police questioning, it was still admissible. The HSC stressed that the fact that the statement was in response to police questioning is a mere factor and "does not per se bar admission." People of Territory of Guam v. Cepeda, 69 F.3d 369, 372 (9th Cir. 1995). The HSC also relied on ICA cases for support. State v. Konohia, 106 Hawai'i 517, 524, 107 P.3d 1190, 1197 (App. 2005); State v. Dunn, 8 Haw. App. 238, 246, 798 P.2d 908, 912-13 (1990).

Confrontation Clause not Violated. The accused has the right "to be confronted with the witnesses against" him or her. Haw. Const. Art. I, sec. 14. When a declarant's "unavailability has been shown, the testimonial statement is admissible for the truth of the matter asserted only if the defendant was afforded a prior opportunity to cross-examine the absent declarant about the statement." State v. Fields, 115 Hawai'i 503, 516, 168 P.3d 955, 968 (2007). That said, the Hawai'i Confrontation Clause does not bar the statement when the "hearsay declarant attends trial and is cross-examined about his or her prior out-of-court statement." Id. at 517, 168 P.3d at 969. The formulations of the rule from Fields came from the analysis of the Confrontation Clause in the Fifth Amendment by the Supreme Court of the United States in Crawford v. Washington, 541 U.S. 36 (2004).

Not Remembering the Statement is Irrelevant to Attending Trial and Being Cross-Examined About it. According to the HSC, neither it nor the SCOTUS, had examined if a declarant who cannot remember the subject matter of the statement adequately "appeared for cross-examination." The HSC rejected Delos Santos' arguments that the cross-examination had to be meaningful. Relying heavily on SCOTUS precedent and cases in other jurisdictions, the HSC held that a declarant need not recall the subject matter of the statement; so long as the declarant appeared at trial and was cross-examined about it, the Confrontation Clause has not been violated.

But was it Testimonial? The federal Confrontation Clause prohibits only "the admission of testimonial statements of a witness who did not appear at trial unless he [or she] was available to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The HSC examined the testimonial-non-testimonial problem in State v. Fitzwater, 122 Hawai'i 354, 372, 227 P.3d 520, 538 (2010):

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They 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 potentially relevant to later criminal prosecutions.

Id. (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).

The HSC never examined whether the statement, "my boyfriend beat me up"--a statement made in response to police questioning--was testimonial or not. The HSC explained that that analysis is unnecessary because the witness was "available" and thus it did not matter if it the statement was testimonial or not. There was no constitutional bar.

Which Goes First? And that raises another question: What part should be applied first? The availability part or the testimonial part? Does it matter? What if the statement turned out to be non-testimonial? Then the availability would not matter either. The SCOTUS never examined this second part--the availability of the witness--it has only focused on whether the statement was testimonial or not.

Confrontation Clause's "Unavailable" is Different from an "Unavailable Declarant" under the Rules of Evidence. In holding that the forgetful declarant is still considered "available" for purposes of the Confrontation Clause, the HSC had made a distinction between "unavailable" for purposes of the constitution and "unavailable" under the rules of evidence. There are two kinds of hearsay exceptions. Some require that the declarant be "unavailable." HRE Rule 804. Other exceptions--like the excited utterance--do not; they are admissible regardless of the availability of the declarant. HRE Rule 803. Under the rules, the trial court must first find that the declarant is unavailable before the 804 exceptions can be admitted. There are five types of unavailability. HRE 804(a). A declarant is unavailable when he or she "[t]estifies to a lack of memory about the subject matter of the declarant's statement[.]" HRE Rule 804(a)(3). Once that happens, the declarant is considered "unavailable."

Interestingly, an unavailable declarant means something very different under the Confrontation Clause. All that is requires is that the declarant show up at trial and be cross-examined about the statement. If the declarant cannot remember, it is does not matter. There's nothing wrong with this. Just because the constitution does not prohibit the testimony does not necessarily mean that the statement will come in. The rules of evidence still apply.

Justice Acoba's Concurrence. Justice Acoba agreed with the result only. Justice Acoba first examined whether the statement was non-testimonial. It was, according to Justice Acoba. Because it is non-testimonial, the federal constitution is not involved and it can only be admitted upon a showing of "unavailability" and if the "statement bear[s] adequate indicia of reliability." State v. Sua, 92 Hawai'i 61, 73, 987 P.2d 959, 971 (1999). Here, Justice Acoba wrote that because the Complaintant could not remember, she was unavailable, and secondly, the statement was part of a firmly-rooted hearsay exception. See Ohio v. Roberts, 448 U.S. 56 (1980). Thus, its admission did not violate the Confrontation Clause. Justice Acoba, however, disagreed with the majority's holding that the "mere presence" of the declarant satisfied the Confrontation Clause. A declarant who cannot remember should not, according to Justice Acoba, be considered available for cross-examination.


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