Supreme Judicial Court (August 18, 2008)
This case serves as a reminder that statements made by an unavailable victim to a 911 dispatcher and to a non-law enforcement witness are admissible and are not testimonial if they satisfy the Commonwealth v. Gonsalves, 445 Mass. 1 (2005) and the Davis v. Washington, 547 U.S. 813 (2006) tests. Even if statements made to a non-law enforcement witness are testimonial, if the statement(s) qualify as a dying declaration, then they may be admitted regardless of whether they are testimonial in nature.
The victim in this case was stabbed 23 times. Immediately following the stabbing, the victim called 911. In response to questioning the victim made various statements which included identifying the defendant. Minutes later, a neighbor arrived and observed the victim covered in blood. He asked the victim what happened and the victim stated, "Ralph did this to me, and don't let me die." Fifteen minutes later, the victim died.
The rules set forth in the cases of United States v. Crawford, Davis v. Washington and Commonwealth v. Gonsalves are clear: Out-of-court statements deemed testimonial per se or testimonial in fact are inadmissible unless the declarant was unavailable to testify at trial and the defendant had an opportunity for cross-examination. Nontestimonial statements, on the other hand, do not give rise to a right of confrontation and may be admitted if the admission is consistent with Massachusetts evidence law (i.e., excited utterance).
The statements made in this case during the 911 call were analyzed under both the Gonsalves and Davis tests and were found to be nontestimonial since they were made under circumstances objectively indicating that there was an ongoing emergency. While the statements were testimonial per se (made in response to law enforcement questioning) the questioning was meant to secure a volatile scene or to establish the need to provide medical care. Therefore, their admission did not violate the defendant's constitutional right to confrontation.
With respect to the statements made to the neighbor, the SJC also held these statements were not testimonial under the Gonsalves testimonial in fact test since no reasonable person in the victim's position would expect her statements to be used in an investigation or prosecution. However, the SJC went on to hold that even if the statements were testimonial, they would still be admitted as an exception to the 6th Amendment Confrontation Clause as long as they satisfied the dying declaration test (a statement made by a declarant under the belief of imminent death and who died shortly after making the statement, concerning the cause or circumstances of what the declarant believed to be her own impending death). Quoting the United States Supreme Court in Crawford, the SJC stated, "The Crawford Court, while expressly leaving the issue undecided, noted that, '[a]lthough many dying declarations may not be testimonial, there is authority for admitting even those that clearly are."