State v. Glenn, 220 N.C. App. 23 (Apr. 17, 2012)

A non-testifying victim’s statement to a law enforcement officer was testimonial. In the defendant’s trial for kidnapping and other charges, the State introduced statements from a different victim (“the declarant”) who was deceased at the time of trial. The facts surrounding the declarant’s statements were as follows: An officer responding to a 911 call concerning a possible sexual assault at a Waffle House restaurant found the declarant crying and visibly upset. The declarant reported that while she was at a bus stop, a driver asked her for directions. When she leaned in to give directions, the driver grabbed her shirt and told her to get in the vehicle. The driver, who had a knife, drove to a parking lot where he raped and then released her. The declarant then got dressed and walked to the Waffle House. The trial court determined that because the purpose of the interrogation was to resolve an ongoing emergency, the declarant’s statements were nontestimonial. Distinguishing the U.S. Supreme Court’s decision in Michigan v. Bryant, the court of appeals disagreed. The court noted that when the officer arrived “there was no ongoing assault, the declarant had no signs of trauma, no suspect was present, and the officer did not search the area for the perpetrator or secure the scene. The officer asked the declarant if she wanted medical attention (she refused) and what happened. Thus, the court concluded, the officer “assessed the situation, determined there was no immediate threat and then gathered the information.” Furthermore, the declarant told the officer that the perpetrator voluntarily released her. The court concluded that even if the officer believed there was an ongoing emergency when he first arrived, he determined that no ongoing emergency existed when he took the statement. The court also determined that there was no ongoing threat to the victim, law enforcement or the public. It noted that the defendant voluntarily released the declarant and drove away and there was no indication that he would return to harm her further. As for danger to the officer, the court found no evidence that the defendant was ever in the Waffle House parking lot or close enough to harm the officer with his weapon, which was a knife not a gun. The court also concluded that because “the evidence suggested defendant’s motive was sexual and did not rise to the level of endangering the public at large.” Regarding the overall circumstances of the encounter, the court noted that because there was only one officer, “the circumstances of the questioning were more like an interview,” in which the officer asked what happened and the declarant narrated the events. It continued, noting that since the declarant “had no obvious injuries, and initially refused medical attention, the primary purpose of her statement could not have been to obtain medical attention.” Furthermore, she “seemed to have no difficulty in recalling the events, and gave [the officer] a detailed description of the events, implying that her primary purpose was to provide information necessary for defendant’s prosecution.” In fact, the court noted, she told the officer that she wanted to prosecute the suspect. The court concluded that the statement was “clearly” testimonial:

[T]here was no impending danger, because the driver released [the declarant] and [the declarant] was waiting at a restaurant in a presumably safe environment. In addition, [the officer] questioned her with the requisite degree of formality because the questioning was part of an investigation, outside the defendant’s presence. [The officer] wanted to determine “what happened” rather than “what is happening.” Furthermore, [the declarant’s] statement deliberately recounted how potentially criminal events from the past had progressed and the interrogation occurred after the described events ended. Finally, [the declarant] gave the officer a physical description of the driver, how he was dressed, his approximate age, and the type of vehicle he was driving. For a criminal case, this information would be “potentially relevant to later criminal prosecution.” (citations omitted).