Opinion
No. 05-11-00346-CR
04-05-2012
THE STATE OF TEXAS, Appellant v. FELIX OBIAGHANWA ECHENDU, Appellee
Reversed and Remanded Opinion Filed April 5, 2012.
On Appeal from the County Criminal Court No. 11
Dallas County, Texas
Trial Court Cause No. MA-10-24298-N
OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
The State of Texas appeals the trial court's order granting Felix Obiaghanwa Echendu's motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2010). Echendu did not file a brief in this appeal. Echendu was charged by information for the offense of assault with a paragraph alleging that it involved family violence. In its sole issue, the State argues that the trial court erred when it granted Echendu's motion to suppress. We conclude that the trial court should not have granted Echendu's motion to suppress. The trial court's order granting Echednu's motion to suppress is reversed and the case is remanded for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Florence Echendu called 9-1-1. When the operator answered, she gave the operator her address and confirmed her telephone number. Then, Florence Echendu reported that Echendu, her husband, was beating her and she was "bleeding everywhere." She requested that they "hurry." The operator asked whether her husband had any weapons and Florence Echendu responded "No" and added that he was running away. The operator inquired as to where he was going, but Florence Echendu only repeated that he was trying to run out. Next, the operator asked if he was going to a car. Florence Echendu responded that he was. The operator asked what kind of car he was driving and Florence Echendu provided a description and volunteered that her husband's name was Felix Echendu. The operator asked for Echendu's date of birth and Florence Echendu provided the information. Then, the operator asked if Echendu had left and Florence Echendu stated that "he just left." The operator asked which direction Enchendu was driving, but Florence Echendu said she did not know. The operator asked Florence Echendu if she had the license plate number. She did not have it. Then, Florence Echendu stated that she "want[ed] the police to come here" and the operator stated that they were coming. Next, the operator asked "What exactly happened?" and "What did he hit you with?" Florence Echendu responded by describing the events leading to the alleged assault and stating that Echendu hit her with his hands. The operator asked her if she was bleeding and she responded that she was. Then, the operator asked where she was bleeding and Florence Echendu stated "from [her] eyes." The operator asked if the bleeding was from the inside or outside of her eyes. Florence Echendu interrupted after "inside" and stated "yes," and added that both of her eyes were bleeding and it hurt "terrible." The operator asked Florence Echendu her age and she provided it. Next, the operator asked her if she was completely alert and breathing normally. Florence Echendu answered "yes" to each of these questions. The operator asked if the blood was spurting or pouring out and Florence Echendu answered that it was pouring out. The operator told Florence Echednu that she was sending the paramedics and gave her instructions on how to tend her wounds until the paramedics arrived. While providing the instructions, the operator inquired whether there was anyone else there and Florence Echendu responded that the children were at school.
Echendu was arrested and charged with assault. He filed a general motion that sought to suppress any evidence that was obtained in violation of the U.S. Constitution. During the hearing on Echendu's motion to suppress, the State advised the trial court that "[the State] is still trying to find [Florence Echendu]," and "[Florence Echendu] has said that she does not want to participate, and she has said that it is not true." After a hearing, the trial court granted Echendu's motion to suppress the recording of the 9-1-1 telephone call on the basis of Crawford. See Crawford v. Washington, 541 U.S. 36, 42 (2004). II. MOTION TO SUPPRESS
In issue one, the State argues that the trial court erred when it granted Echendu's motion to suppress. The State contends that the 9-1-1 telephone call recording is admissible for two reasons: (1) it does not violate the Confrontation Clause of the United States Constitution because Florence Echendu's statements to the 9-1-1 operator were nontestimonial; and (2) Florence Echendu's statements fall under the excited utterance exception to the hearsay rule.
A. Standard of Review
A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. This standard requires an appellate court to give almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Hubert v.. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). A trial court is the sole trier of fact, and the judge of witness credibility and the weight to be given to their testimony. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). Although an appellate court defers to a trial court's determination of historical facts and credibility, it reviews a constitutional legal ruling, i.e., whether a statement is testimonial or nontestimonial, de novo. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
B. Applicable Law
The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 42 (2004). Testimonial out-of-court statements by a witness absent from trial are barred by the Confrontation Clause unless (1) the witness is unavailable, and (2) the defendant has had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 59; Coronado v. State, 351 S.W.3d 315, 323 (Tex. Crim. App. 2011). The term "testimonial" applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogation. Crawford, 541 U.S. at 68.
"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." Michigan v. Bryant, 131 S. Ct. 1143, 1154 (2011) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)); see also Coronado, 351 S.W.3d at 324. Although 9-1-1 operators are not law enforcement officers, "they may at least be agents of law enforcement when they conduct interrogations of 9-1-1 callers." Bryant, 131 S. Ct. at 1155 n.3. (quoting Davis, 547 U.S. at 823 n.2). "To determine whether the 'primary purpose' of an interrogation is to 'enable police assistance to meet an ongoing emergency' . . . which would render the resulting statements nontestimonial, a court objectively evaluates [(1)] the circumstances in which the encounter occurs and [(2)] the statements and actions of the parties." Bryant, 131 S. Ct. at 1156 (quoting Davis, 547 U.S. at 822); see also Coronado, 351 S.W.3d at 324 n.50.
1. Circumstances in which Encounter Occurred
First, the existence of an ongoing emergency is among the most important circumstances "informing the primary purpose of an interrogation." See Bryant, 131 S. Ct. at 1157. This is relevant because an emergency focuses the participants on something other than "prov[ing] past events potentially relevant to later criminal prosecution." Bryant, 131 S. Ct. at 1157 (quoting Davis, 547 U.S. at 822). "[I]t focuses them on 'ending a threatening situation.'" Bryant, 131 S. Ct. at 1157 (quoting Davis, 547 U.S. at 832). "Implicit . . . is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination." Bryant, 131 S. Ct. at 1157. This logic is similar to the excited utterance exception in hearsay law. Bryant, 131 S. Ct. at 1157. When evaluating the circumstances in which the encounter occurred, the United States Supreme Court has considered the scope and duration of the emergency, the medical condition of the victim, and the level of formality of the interrogation. See Bryant, 131 S. Ct. at 1157-60.
"[T]he scope and duration of an emergency may depend[,] in part[,] on the type of weapon employed." Bryant, 131 S. Ct. at 1158. For example, when the defendant was armed with his fists, removing the victim to a separate room may be sufficient to end the emergency. Bryant, 131 S. Ct. at 1158-59 (affidavit of victim testimonial when taken after police separated defendant and victim into separate room). However, if the defendant was armed with a gun, separation "by a single household wall" may not be sufficient to end the emergency because the threat to first responders and the public may continue. Bryant, 131 S. Ct. at 1158-59.
Also, "the medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to [law enforcement's] questions and on the likelihood that any purpose formed would necessarily be a testimonial one." Bryant, 131 S. Ct. at 1159. "The victim's medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public." Bryant, 131 S. Ct. at 1159. However, "'a conversation, which begins as an interrogation to determine the need for emergency assistance,' can 'evolve into testimonial statements.'" Bryant, 131 S. Ct. at 1159 (quoting Davis, 547 U.S. at 828). "Trial courts can determine[,] in the first instance[,] when any transition from nontestimonial to testimonial occurs, and 'exclude the portions of any statement that have become testimonial.'" Bryant, 131 S. Ct. at 1159-60 (quoting Davis, 547 U.S. at 829).
In addition, the level of formality of the encounter between a victim and law enforcement is an important factor. See Bryant, 131 S. Ct. at 1160. "[F]ormality suggests the absence of an emergency and therefore[,] an increased likelihood that the purpose of the interrogation is to 'establish or prove past events potentially relevant to later criminal prosecution.'" Bryant, 131 S. Ct. at 1160 (quoting Davis, 547 U.S. at 822). However, "informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent." Bryant, 131 S. Ct. at 1160.
2. Statements and Actions of Interrogators and Declarant
Second, "in addition to the circumstances in which an encounter occurs, the statements and actions of both the interrogators and the declarant provide objective evidence of the primary purpose of the interrogation." Bryant, 131 S. Ct. at 1160 (citing Davis, 547 U.S. at 827). "In many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers." Bryant, 131 S. Ct. at 1160-61.
"[A] combined inquiry that accounts for both the declarant and the interrogator" is required. Bryant, 131 S. Ct. at 1160. "This combined approach ameliorates problems that could arise from looking solely to one participant." Bryant, 131 S. Ct. at 1161. Predominant among these is the "mixed motives on the part of both interrogators and declarants." Bryant, 131 S. Ct. at 1161. Law enforcement officers "function as both first responders and criminal investigators." Bryant, 131 S. Ct. at 1161. "Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession." Bryant, 131 S. Ct. at 1161. Also, "victims are likely to have mixed motives when they make statements to [law enforcement]." Bryant, 131 S. Ct. at 1161. "During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end." Bryant, 131 S. Ct. at 1161. "[T]hat does not necessarily mean that the victim wants or envisions prosecution of the assailant." Bryant, 131 S. Ct. at 1161. "A victim may want the attacker to be incapacitated temporarily or rehabilitated." Bryant, 131 S. Ct. at 1161. "Alternatively, a severely injured victim may have no purpose at all in answering questions posed; the answers may simply be reflexive." Bryant, 131 S. Ct. at 1161. Also, "[t]he victim's injuries could be so debilitating as to prevent her from thinking sufficiently clearly to understand whether her statements are for the purpose of addressing an ongoing emergency or for the purpose of future prosecution." Bryant, 131 S. Ct. at 1161. The objective inquiry should focus on "the understanding and purpose of a reasonable victim in the circumstances of the actual victim." Bryant, 131 S. Ct. at 1161-62.
C. Application of the Law to the Facts
During the hearing, the recording of the 9-1-1 telephone call placed by Florence Echendu was admitted into evidence for purposes of the hearing. The record contains only the 9-1-1 recording. It is from this evidence that the "primary purpose" must be determined. First, we review the circumstances in which the 9-1-1 telephone call occurred. With regard to the scope and duration of the "ongoing emergency," Florence Echendu called 9-1-1, stated that her husband was beating her and she was "bleeding everywhere," and requested that they "hurry." However, during the call, Florence Echendu stated that Echendu was trying to flee and, at one point, she indicated that he had left. Also, the type of weapon allegedly used by Echednu is relevant to determining the scope and duration of the "ongoing emergency." See Bryant, 131 S. Ct. at 1158. Florence Echendu stated that Echendu hit her with his hands. Further, when asked by the 9-1-1 operator if Echendu had any weapons, Florence Echendu answered, "No." See Bryant, 131 S. Ct. 1158-59 (when defendant armed with fists, removing to another room may be sufficient to end emergency). However, this is not the end of our analysis.
Florence Echendu's medical state is important to the "primary purpose" inquiry. See Bryant, 131 S. Ct. at 1159 (medical condition of victim important to primary purpose inquiry). Throughout the 9-1-1 telephone call, Florence Echendu answered questions about her physical condition. She stated that she was "bleeding everywhere," her eyes were swollen, she was bleeding from the inside of both eyes, her eyes hurt terribly, the blood was "pouring out," and although she can be heard breathing heavily, she said that she was breathing normally and completely alert. She also said "please hurry" and stated that she wanted the police to come. At the conclusion of the 9-1-1 call, the operator gave her instructions on how to care for the assault wounds until the paramedics arrived.
Additionally, the level of formality of the interrogation is an important factor in evaluating the "interrogation." See Bryant, 131 S. Ct. at 1160. Although the 9-1-1 operator was "at least an agent of law enforcement," the record reflects that the 9-1-1 telephone call made by Florence Echednu was not formal police questioning. See Davis, 547 U.S. at 823 n.2.
Second, we review the statements and actions of both the 9-1-1 operator and Florence Echendu to consider objective evidence of the "primary purpose" of the interrogation. The 9-1-1 operator's questions and Florence Echendu's answers focus on the event that was occurring. That interrogation consists of the 9-1-1 operator asking questions about the nature of the call, "what happened?", the extent of Florence Echendu's injuries, the means by and direction in which Echendu fled, and whether Echednu had a weapon. In addition, the 9-1-1 operator provided Florence Echendu with instructions on how to care for her injuries until the paramedics arrived. After Florence Echendu stated that Echendu was fleeing, the operator asked for a description of the car and the direction that Echendu took. Florence Echendu was unable to clearly answer the direction in which Ehcendu fled and she did not know the license plate number of the vehicle, although she did describe the manufacturer, model year, and color of the car.
During the call, Florence Echendu does not provide information or answer questions as if she was in a formal interview. She requested the operator to repeat questions. Similarly, the 9-1-1 operator asked her to repeat some of her answers because the answers were not clear. Further, based on her statements and answers to questions, Florence Echendu was focused on her physical state, i.e., having the threat to her person end and obtaining medical assistance. Her statements and answers do not demonstrate she had a purpose of future prosecution. See Braynt, 131 S. Ct. at 1161.
After reviewing the circumstances in which the encounter occurred and the statements and actions of both the 9-1-1 operator and Florence Echendu, we conclude that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, which renders Florence Echendu's statements nontestimonial. Issue one is decided in the State's favor. III. CONCLUSION
The trial court's order granting Echendu's motion to suppress was erroneous.
The trial court's order granting Echednu's motion to suppress is reversed and the case is remanded for further proceedings consistent with this opinion.
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110346F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
FELIX OBIAGHANWA ECHENDU, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00346-CR
Appeal from the County Criminal Court No. 11 of Dallas County, Texas. (Tr.Ct.No. 10- 24298-N).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.
Based on the Court's opinion of this date, the trial court's order granting appellee Felix Obiaghanwa Echendu's motion to suppress evidence is REVERSED and the cause REMANDED for further proceedings.
Judgment entered April 5, 2012.
DOUGLAS S. LANG
JUSTICE