THE SUPREME COURT OF THE UNITED STATES

FALL TERM, 2010

DOCKET NO. 01-01234

FRANK BOOTH,

Petitioner,

v.

The PEOPLE of the STATE of ACADIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE UNITED STATES

Brief for Petitioner

Advocate #P2

Issue #2

Gina Giacopuzzi – (XXX) XXX-XXXX

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES...... ii

QUESTION PRESENTED...... 1

OPINIONS BELOW...... 1

CONSTITUTIONAL PROVISIONS AND RULES...... 1

INTRODUCTION...... 2

STATEMENT OF THE CASE...... 3

ARGUMENT...... 5

  1. The Confrontation Clause of the U.S. Constitution bars the admission of testimonial statements...... 5
  1. There was no ongoing emergency because Beaumont faced no further physical threat and the danger had dissipated...... 6
  1. Beaumont’s statements were testimonial because he was describing recent, but past, criminal activity...... 10
  1. Beaumont’s statements were testimonial because the nature of the interrogation was to obtain information related to past criminal activity...... 11
  1. Even though the interrogation took place on the street, Beaumont’s statements were responses to inquiries by officers and separate from the crime scene...... 14

CONCLUSION...... 15

TABLE OF AUTHORITIES

Cases

Davis v. Washington

547 U.S. 813 (2006)...... 5, 6, 7, 8, 9, 10, 11, 12, 14, 15

Crawford v. Washington

541 U.S. 36 (2004)...... 5, 6

State v. Kirby

280 Conn. 361 (2006)...... 8, 9

State v. Lewis

235 S.W.3d 136 (Tenn. 2007)...... 11

State v. Koslowski

166 Wash. 2d 409 (2009)...... 12, 14, 15

Collins v. State

873 N.E.2d 149 (Ind. Ct. App. 2007)...... 13, 14

Constitutional Provisions

U.S. Const. amend. VI...... 2

Other Authorities

Jeffrey L. Fisher, What Happened—And What Is Happening—To the Confrontation Clause

15 J.L. & Pol’y 587 (2007)...... 7

1

QUESTION PRESENTED

Issue 1: Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?

OPINIONS BELOW

471 Ac. 359 (2009)

CONSTITUTIONAL PROVISIONS AND RULES

U.S. Const. amend. VI

INTRODUCTION

Issue 1:

The Confrontation Clause of the Constitution protects a criminal defendant’s right to confront adverse witnesses and bars admission of testimonial, out-of-court statements against criminal defendants. Petitioner Frank Booth challenges the admission of out-of-court statements made by Jeffrey Beaumont, on the grounds that they were made for the purpose of establishing or proving past events relevant to his later trial, and thus testimonial. As this Court has held that statements similar to those made by Beaumont are testimonial, Petitioner respectfully requests that this Court reverse the Acadia Supreme Court.

The statements at issue were made by Beaumont outside an all-night restaurant, which he had driven to after being shot in the stomach. He called the police, who proceeded to wait with him until emergency medical services (EMS) arrived and ask him questions about what had happened, who had shot him, and where the shooting had occurred. Beaumont calmly recounted the circumstances of the earlier crime. When EMS arrived, the police proceeded to Booth’s house.

The primary purpose of the interrogation was to establish or prove past events, potentially relevant to a later criminal prosecution. First, a reasonable listener would recognize that Beaumont was not facing an ongoing emergency because any danger had dissipated, and his statements were not a cry for help in the face of a physical threat. Second, his statements recounted past events, in the past tense, rather than events as they were actually happening to him. Third, the nature of the investigation was to learn what happened in the past to Beaumont at a separate location, not to elicit statements necessary to address Beaumont’s injuries. Finally, the formality of the interrogation was evidenced by Beaumont’s calm responses in a question-answer sequence with police officers.

STATEMENT OF THE CASE

On October 13th, at 3:25 a.m., police officers arrived at an all-night restaurant in response to a call about a possible gunshot victim. (R. at 37). Jeffrey Beaumont was lying on the ground outside, with what appeared to be a gunshot wound to the abdomen. Id. The officers called for emergency medical services (EMS), and waited with Beaumont until they arrived. (R. at 37-38). At no point did the officers draw their weapons, take up a defensive position, request back up, or search the surrounding area. (R. at 38).

Beaumont appeared coherent and calm. (R. at 37). The officers asked him what had happened, who had shot him and where the shooting had occurred. Id. Beaumont recounted how he was outside his neighbor’s door at about 3:00 a.m., speaking with someone through the door. Id. The door remained closed, but Beaumont believed the individual on the other side to be Frank Booth. Id. A gunshot was fired through the door and struck him in the stomach. Id. Beaumont then left the scene, entered his vehicle, and drove six blocks away, to the restaurant. (R. at 38). It was from the restaurant that he called for the police on a pay phone. Id.

After EMS arrived, the officers left the scene and proceeded to Booth’s residence. Id. They took up a tactical formation around the house, drew their weapons, and called for back up. Id. They did not approach the home until back up arrived. Id. They found the scene as Beaumont had described, but a thorough search of the home revealed no firearms or Booth himself. Id. Booth was later apprehended in Illinois and extradited back to Acadia to stand trial. Id. Beaumont later died of his injuries. Id. Booth was convicted of second-degree murder. Id.

Booth, the petitioner, argues that the statements given by Beaumont at the scene of the crime were improperly admitted at trial. Id. The Court of Appeals reversed the trial court’s decision to admit the statements, holding them testimonial and a violation of Booth’s Sixth Amendment Confrontation Clause rights. Id. Under the U.S. Supreme Court’s ruling in Davis v. Washington,547 U.S. 813 (2006), the Court of Appeals determined that the primary purpose of the statements was to establish or prove past events potentially relevant to a later criminal prosecution. (R. at 38). The Acadia Supreme Court reversed, finding the statements non-testimonial. Id. Booth now appeals, asking this court to reverse the Acadia Supreme Court’s ruling as a violation of his Constitutional rights, and find the statements testimonial.

ARGUMENT

  1. The Confrontation Clause of the U.S. Constitution bars the admission of testimonial statements.

The Confrontation Clause of the 6th Amendment protects a criminal defendant’s right to confront adverse witnesses. U.S. Const. amend. VI. In Crawford, the Supreme Courtinterpreted the Confrontation Clause to bar admission of statements that qualify as testimonial hearsay, unless the declarant was unavailable and defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). It found that the principle evil at which the Confrontation Clause was directed was the admission of ex parte examinations as evidence against the accused. Id. at 50. The Court left open the question of what makes out-of-court statements testimonial, while noting that statements taken by police officers are testimonial “under even a narrow standard.” Id. at 52, 68.

In a subsequent case, the Supreme Court held that statements are testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822 (2006). To determine the primary purpose of an interrogation, the Court considered whether a reasonable listener would recognize that the declarant was facing an ongoing emergency; whether the declarant was speaking about events as they were actually happening, rather than describing past events; the nature of the statements and questions; and the level of formality of the interrogation. Id. at 827. These factors illustrate the high premium placed on a criminal defendant’s rights under the Constitution. Testimonial hearsay is the primary object of the Confrontation Clause, and interrogations by law enforcement officers fall squarely within that class. Id. at 823.

  1. There was no ongoing emergency because Beaumont faced no further physical threat and the danger had dissipated.

To determine if a reasonable listener would recognize the victim was facing an ongoing emergency, Davislooked to whether a victim’s statements were a cry for help against a bona fide physical threat or whether a crime was still in progress, both of which would render the statements non-testimonial. Davis, 541 U.S. at 827. In Davis, the victim was literally crying for help as her boyfriend was beating her. Id. at 828. In Davis’ companion case, Hammon, the victim said things were fine and the police proceeded to ask her questions. Id. at 830. Hammon found that, since theassault had ended before the statements were made, the danger had dissipated. Id. at 829-30. It distinguished from Davis in finding that there was “no immediate threat” to the victim. Id. at 830.

The Court also noted that a conversation beginning as an interrogation to determine the need for emergency assistance could evolve into testimonial statements, once that purpose had been achieved. Id. at 828. In that case, information needed to address the “exigency of the moment” would be non-testimonial, but the lower courts should redact or exclude portions of the statement that became testimonial. Id. at 828-29. As one law review article put it, “The emergencies in [Davis and Hammon] were limited to the criminal events themselves, and when those events ceased occurring, statements describing how they had transpired were testimonial.” Jeffrey L. Fisher, What Happened—And What Is Happening—To the Confrontation Clause, 15 J.L. & Pol’y 587, 614 (2007). While Davisdidn’t address severe injuries as constituting an ongoing emergency, consistent with the Court’s approach to the evolving nature of statements was State v. Kirby, 280 Conn. 361, 383-86 (2006), finding statements made after the victim had escaped testimonial, since “although [she] might have needed emergency medical assistanceat the time she made the call, the bulk of her conversation with Gomes nevertheless consisted of her account of a crime that had happened to her in the recent past, rather than one that was happening to her at the time of the call.” Kirbydetermined that the primary purpose of the declarant’s statements was not to solve an ongoing emergency or crime in progress. Id. at 384.

As in Hammon, when the police officers arrived at the restaurant and found Beaumont lying on the ground, injured, there was no indication that he was in any immediate danger or that the crime was ongoing. Like Hammon, the danger had passed. Unlike Davis, the victim was not still being attacked. At no time did the officers take up a defensive position, draw their weapons, or canvass the area. This showed a lack of any expectation on the officers’ part that there was an ongoing crime and they would encounter a violent individual in the vicinity—especially when compared to their behavior upon arriving at Booth’s house later. Objectively, any emergency that had occurred was over. Beaumont had driven six blocks away from Booth’s home, and was protected by officers at the time of his statements.The crime to which his statements related, and any possibility of further injury, was clearly ended by Beaumont’s distance from the crime scene and the presence of the officers. SeeKirby, 280 Conn. At 383-86 (holding that any emergency had ended because the crimes were no longer in progress, the victim was rendered protected by law enforcement’s presence, and the perpetrator was some distance away—the victim “already had escaped”).

Nor wasthe substance of Beaumont’s statements a cry for help in the face of an ongoing emergency. His statements were not made for the purpose of “proclaim[ing] an emergency and seek[ing] help” such as those in Davis. Davis, 547 U.S. at 828. They were more analogous to those in Hammon, since the attack had ended and he was responding to questions. Even if this Court accepted the contention of the Acadia Supreme Court that a severe injury constitutes an ongoing emergency in and of itself, under Davis, the determination of Beaumont’s need for emergency assistance had been met and his statements were thereafter testimonial. The officers had called for EMS. Beaumont’s statements did not relay to the officers information needed to address the “exigency of the moment.” Davis, 541 U.S.at 828. Instead, the purpose of his statements was to relay to the officers what had occurred, similar to Kirby. As the Acadia Supreme Court dissent noted, “If the primary purpose of the statement is to resolve that injury the statement should focus on the injury.” (R. at 43). Beaumont’s statements regarding his beliefs about the identity of the perpetrator and what transpired during the crime did not do so.

The Acadia Supreme Court’s contention that a criminal act continues until the victim’s injuries are treated is untenable under Davis. (R. at 40). It would result in admission of any number of testimonial statements long after any crime had ended and long after any danger had passed, so long as some of the victim’s injuries were in some way untreated.

  1. Beaumont’s statements were testimonial because he was describing recent, but past, criminal activity.

The second factor considered in Davis is whether the victim was speaking about events as they were actually happening, rather than describing past events. Davis, 541 U.S.at 827. In Davis, the 911 caller, McCottrey, was describing events as they happened to her—“He’s here jumpin’ on me again… He’s usin’ his fists”—and her statements were held to be testimonial. Id. at 818, 828. In Hammon, the victim, Amy’s statements were past-tense responses to questions about what had occurred and what her husband had done to her, and they were held to be non-testimonial. Id. at 820-21, 830. “McCottrey’s present-tense statements showed immediacy; Amy’s narrative of past events was delivered at some remove in time from the danger she described,” the Court explained. Id. at 831-32. See alsoState v. Lewis, 235 S.W.3d 136, 147 (Tenn. 2007)(finding that where the victim had been shot minutes earlier and gave descriptions of “recent, but past” activity, the statements were testimonial).

In this case, Beaumont was describing past events, rather than describing events that were actually happening to him. He recounted the sequence of events, in response to the officers’ past-tense questions (“what had happened, who had shot him, and where the shooting had occurred” (emphasis added)), in sharp contrast to the statements in Davis. Beaumont’s statements were closer to those in Hammon: They were statements about “what had occurred” in the past. Davis, 547 U.S. at 820-21. They were a narrative of the shooting, delivered at some remove in time from the actual shooting.

  1. Beaumont’s statements were testimonial because the nature of the interrogation was to obtain information related to past criminal activity.

The third factor considered in Davis was whether the nature of what was asked and answered, objectively, was such that the elicited statements were necessary to resolve a present emergency or to learn what had happened in the past. Davis, 541 U.S.at 827. In Hammon, the Court looked to whether the primary purpose of the interrogation was to investigate a possible crime, rendering the interrogation non-testimonial. Id. at 830. The Court found that the primary purpose of the officer’s inquiry was to find out “what happened.” Id. The Court reasoned that such statements, deliberately recounted in response to police questioning, were an obvious substitute for live testimony “because they do precisely what a witness does on direct examination.”Id.See alsoState v. Koslowski,166 Wash. 2d 409, 425-27 (2009)(where the officers were the first to arrive on scene but the nature of the interrogation was for the purpose of identifying and apprehending armed suspects—it was not necessary to resolve a present emergency). Hammon furtherheld that, just because a police officer’s interrogation amounted to “initial inquiries” at the scene of the crime did not make them testimonial, unless the statements provided information that would enable officers immediately to end a threatening situation. Davis, 547 U.S. at 832.

Similar to Hammon, the police officers were investigating a possible crime by determining what had happened, who had shot Beaumont, and where it had occurred. Such elicited statements were not necessary to resolve the present situation; that is, Beaumont’s gunshot wound. Although the officers were the first on scene and their questions were “initial inquiries,” Beaumont’s answers did not immediately assist the officers in ending a threatening situation. They functioned instead as a substitute for live testimony, as defined inDavis. Recounting what happened, where, and to whom, is precisely what a witness does on the stand and precisely what Beaumont did here. Similar to the officers in Koslowski, the nature of the officers’ focus was on identifying and apprehending the suspect as soon as EMS arrived, as evidenced not only by their inquiries but also by the fact that they proceeded immediately thereafter to Booth’s residence to apprehend him. Statements used by officers in their investigation of a past possible crime, as here and in Hammon, are testimonial.