Archive for October 16, 2006

Last week, the CT Supreme Court released a decision [pdf] that applied SCOTUS’ principle in Crawford v. Washington in a case that made the news media. In State v. Kirby, the supreme court held that the deceased declarant’s statements to a police dispatcher and a police officer were testimonial and were admitted in violation of Crawford and Davis.

Applying the Davis test to the facts of the present case, we first conclude that the complainant’s statements by telephone to Gomes were testimonial and, therefore, inadmissible under Crawford. A review of Gomes’ conversation with the complainant makes clear that the ‘‘primary purpose’’ of the call was to investigate and apprehend a suspect from a prior crime, rather than to solve an ongoing emergency or crime in progress at the time of the call.

This renders the call, viewed as a whole,distinct from the telephone call that was held  nontestimonial in Davis, in which the declarant, a domestic violence victim calling to report that her former boyfriend was at her house beating her, ‘‘was speaking about events as they were actually happening, rather than ‘describ[ing] past events . . . .’ ’’  Put differently, at the time of her telephone conversation with Gomes, the complainant in the present case was not under a ‘‘bona fide physical threat’’ at the hands of the defendant. Id. Her call was made for the purpose of reporting a past criminal act, rather than to avert a presently occurring one. This renders the telephone call recording testimonial and, therefore, inadmissible under Crawford in the absence of an opportunity for prior cross-examination by the defendant.

We conclude similarly as to the complainant’s statements to Thornton at her home, which also were testimonial and, therefore, inadmissible under Crawford because the defendant lacked a prior opportunity for cross-examination.