Statement to girlfriend not testimonial

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A hearsay statement by a witness to his girlfriend is not “testimonial,” and thus, its admission into evidence does not violate the Confrontation Clause, the Wisconsin Supreme Court held on June 10.

Antwan B. Manuel shot Prentiss Adams in the neck while Adams was sitting in his car talking to Derrick Stamps. Stamps told his girlfriend, Anna Rhodes, about the incident.

Manuel was arrested the same day, and Stamps was arrested two days later by police detective Matthew Misener. At the time of the arrest, Rhodes asked, “Why, because he was with the guy that shot that dude?”

Upon questioning, Rhodes gave Misener details of the shooting she had gotten from Stamps.

Manuel was charged with attempted first-degree intentional homicide and five other charges. Stamps refused to testify, and Rhodes testified, but claimed not to remember either what Stamps told her, or what she told Misener. Misener then testified as to what Rhodes told him that Stamps had told her.

Manuel was convicted of all charges, and appealed. The court of appeals affirmed in a published decision, 2004 WI App 111, 275 Wis.2d 146, 685 N.W2d 525.

The Supreme Court granted review, and also affirmed, in a unanimous decision by Justice Louis B. Butler, Jr.

Only the statement from Stamps to Rhodes was reviewed.

The Court held that admission of the statement did not violate the Confrontation Clause, notwithstanding the recent U.S. Supreme Court decision in Crawford v. Washington, 541 U.S. 36 (2004).

The court found that the statement fell into sec. 908.045(2) — the exception to the hearsay rule for statements of recent perception: “A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant’s recollection was clear.”

In Crawford, the court held admission of “testimonial” hearsay statements violates the Confrontation Clause, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. However, the court did not define “testimonial.”

Instead, the court stated that testimonial statements could by characterized by three possible formulations:

(1) “[E]x parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”;

(2) “[E]xtrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; or

(3) “[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

The Wisconsin Supreme Court declined to explicitly adopt any of the three, because it concluded that the statements are not testimonial under any of them, stating, “For now, at a minimum, we adopt all three of Crawford’s formulations.”

Stamps’ statements clearly did not fall into either of the first two, so the court devoted its consideration to the third, and agreed with extensive authority from other jurisdictions, since Crawford was decided, finding that similar statements were nontestimonial: statements to neighbors, acquaintances, nephews, girlfriends, and co-actors.

The court wrote, “We find these cases persuasive. Applying them, we conclude that Stamps’ statements to Rhodes were not testimonial. Stamps made the statements to Rhodes, his girlfriend, during what appears to be a spontaneous, private conversation that occurred shortly after the shooting (cites omitted).”

Because the statements were not testimonial, Crawford does not apply. The court then turned to the issue of what standard does apply when considering whether admission of nontestimonial statements violates the Clause.

Rejecting the state’s argument that such statements do not implicate the Clause at all, the court agreed with Manuel that the former test from Ohio v. Roberts, 448 U.S. 56 (1980), should continue to be used.

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The court explained, “While the Crawford Court abrogated Roberts by highlighting its shortcomings and failures, the Court declined to overrule Roberts and expressly stated that the states were free to continue using Roberts when dealing with nontestimonial hearsay. We accept Manuel’s argument that Roberts ought to be retained for nontestimonial statements, as we agree that evidence that may be admissible under the hearsay rules may nevertheless still be inadmissible under the Confrontation Clause.”

Because the statement of recent perception exception is not a firmly rooted hearsay exception, but is all but unique to Wisconsin, admission of the statement passes constitutional muster under Roberts only if there is there is a showing of “particularized guarantees of trustworthiness.”

The court found there were such guarantees, noting that Stamps’ statements were volunteered to his girlfriend, with no apparent reason to lie, and that the statements implicated a fellow gang member, as opposed to a rival one. Accordingly, the court affirmed.

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David Ziemer can be reached by email.