The Florida Bar

Florida Bar Journal

State v. Lopez: Florida’s New “On-going Emergency” Rule

Criminal Law

When the Florida Supreme Court recently decided State v. Lopez, 974 So. 2d 340 (Fla. 2008), the court carved out a new rule to determine if an excited utterance is testimonial — the “on-going emergency rule.”

This article reviews the excited utterance exception; reviews Crawford v. Washington, 541 U.S. 36 (2004), and its application in Lopez ; reviews Lopez and argues why the new on-going emergency rule from the Florida Supreme Court creates too rigid a test for determining whether a statement is testimonial; and looks at how Lopez has been applied. Finally, it will examine the future ramifications of the rule for criminal defense attorneys and prosecutors.

The Excited Utterance Hearsay Exception
An excited utterance is any statement made by a claimant during the course of a startling event or condition while the claimant is under the stress of excitement caused by the startling event. This hearsay exception is codified by F.S. §90.803(2).

The rationale for the exception lies in the special reliability that is furnished when excitement suspends the declarant’s powers of reflection and fabrication. This factor also serves to justify dispensing with any requirement that the declarant be unavailable because it suggests that testimony on the stand, given at a time when the powers of reflection and fabrication are operative, is no more (and perhaps less) reliable than the out-of-court statement.1

The U.S. Supreme Court, on more than one occasion, has ruled that, despite the Sixth Amendment, the excited utterance exception should remain an exception to the hearsay rule.2 Prior to Crawford, when a witness was unavailable, a trial court could determine the reliability of the statement and allow it before the jury.

In Lopez, the Florida Supreme Court determined the statement made by the witness was an excited utterance; however, it held the statement was inadmissible due to the confrontation clause in accordance with the U.S. Supreme Court’s decision in Crawford.3

Crawford v. Washington
Prosecutors in Washington state charged Mr. Crawford with assault and attempted murder on a man who allegedly tried to rape his wife. Mrs. Crawford was unable to testify due to Mr. Crawford invoking a marital privilege to prevent a spouse from testifying. However, Mrs. Crawford previously provided a recorded statement to officers which was offered by the state into evidence. Mr. Crawford objected to the statement, arguing that its admission would violate his Sixth Amendment right to confront witnesses against him.4 The trial court, following Ohio v. Roberts, 448 U.S. 56 (1980), allowed the recorded statement finding 1) the witness was unavailable, and 2) the statement bore an adequate indicia of reliability.5

The U.S. Supreme Court held the statement violated the Sixth Amendment confrontation clause. Justice Scalia, writing for the Court stated: “Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”6 “Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’”7

With its holding in Crawford, the U.S. Supreme Court requires a trial court first determine whether the statement is testimonial, and, if so, not allow the statement unless 1) the witness is unavailable or unable to testify, and 2) the defendant had a previous opportunity to cross-examine the witness.

However, the U.S. Supreme Court did not determine the definition of a testimonial statement, stating “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”8

In 2006, the U.S. Supreme Court attempted to create a definition of testimonial with its holding in Davis v. Washington, 547 U.S. 813 (2006). The Court decided two cases, Davis from Washington and Hammon v. Indiana, 546 U.S. 1088 (2006). Both cases dealt with out-of-court statements from domestic battery victims. In Davis, the statement was made to a 911 operator; in Hammon, the statement was made to an officer on scene. The Court held the statement in Davis was nontestimonial and held the statement in Hammon was testimonial and, therefore, should have been suppressed as violating the defendant’s Sixth Amendment rights of confrontation.

State v. Lopez
Police officers in Tallahassee were dispatched on a complaint of an assault and kidnapping. Upon arrival, Officer Gaston met Hector Ruiz, the alleged victim, and asked what happened. Mr. Ruiz, upset and nervous, blurted out that Mr. Lopez had pointed a gun at him and forced him from his car. Mr. Ruiz told a second officer, Officer Arias, that the gun was still in his car. Officers recovered a. 38 caliber Smith & Wesson.

Mr. Lopez was detained, given his Miranda rights, and questioned. Mr. Lopez admitted the. 38 was his and that he had hidden the gun when he saw police officers.

The state charged Mr. Lopez with possession of a firearm by a convicted felon. The victim, Mr. Ruiz, appeared for a discovery deposition and was questioned by the defense. However, Mr. Ruiz could not be found for trial.9

The defense moved to exclude the statements Mr. Ruiz made on scene. The state argued the statements were excited utterances, while the defense argued they were not excited utterances and any mention or admission of such statements would violate Mr. Lopez’s Sixth Amendment confrontation rights. The trial court determined the statements were admissible under the excited utterance hearsay exception of F.S. §90.803(2) (2006). Mr. Lopez was found guilty, with the special finding that Mr. Lopez was in actual possession of the. 38.

In its opinion, the Florida Supreme Court held the statements violated Mr. Lopez’s Sixth Amendment rights.10 In so holding, the Supreme Court determined: 1) the statements were excited utterances; 2) the statements were testimonial; but 3) the defense did not get an opportunity to cross-examine the witness.11

The Florida Supreme Court relied heavily on Davis to reach its decision in Lopez. The Florida Supreme Court stated:

From these two scenarios, the Davis [c]ourt established a general rule for determining whether statements are testimonial or nontestimonial:

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. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.12

Writing for the court, Justice Quince, created a bright-line distinction between Davis and Hammon, when stating: “In Davis, the questioning by the 911 operator was to enable the responding officers to meet an ongoing emergency…. In contrast, the Supreme Court concluded that the primary purpose of the interrogation in Hammon was to establish or prove past events potentially relevant to later criminal prosecution.”13

The court held, “(t)he circumstances here indicate that there was no ongoing emergency at the time Officer Gaston questioned Ruiz.”14

Did the U.S. Supreme Court Create the On-going Emergency Rule?
The language quoted by the Florida Supreme Court failed to show the Davis language in its full context. Writing for the U.S. Supreme Court, Justice Scalia placed these words just before the quotation chosen by the Florida Supreme Court to explain the Court’s intent in Davis: “Without attempting to produce an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation — as either testimonial or nontestimonial.”15

In Davis, Justice Scalia very clearly showed the Court’s holding was not intended to create a bright-line rule in determining when a statement is testimonial. Yet, the Florida Supreme Court ignored this language and created a bright line. failing to include these words from Lopez, the Florida Supreme Court focused directly on the necessity of an on-going emergency.

In deciding Davis and Hammon, the U.S. Supreme Court used a four-prong balancing test to determine the testimonial or nontestimonial character of each statement.

First prong: Is the victim speaking of past or present circumstances? In Davis, the statement relayed events as they were actually happening. Whereas in Hammon, the statement was taken many minutes later and relayed information of past criminal conduct.

Second prong: Is the speaker facing an on-going emergency. In Davis, the statement was deemed “a call for help against bona fide physical threat.” In Hammon, the victim’s first statement to officers was that things were fine.

Third prong: The nature of the questions asked and their primary purpose. Were the questions asked to resolve the present emergency, or learn about a past event? Are the questions, “What is happening?” versus “What happened?”

Fourth prong: The level of formality of the questions asked. In Davis, the victim provided frantic answers over the phone in an environment not tranquil or safe. In Hammon, the Court determined the questions were “formal enough” due to the fact officers took the victim to another room, removed her from the alleged perpetrator, and interviewed her after the described events were over.

This four-part test allowed the U.S. Supreme Court to hold the Davis statement nontestimonial and, therefore, admissible before the jury as evidence; but also allowed the Court to hold the Hammon statement to be testimonial and, therefore, not admissible.

Justice Thomas criticized this four-part balancing test. In his dissent, Justice Thomas called it “neither workable nor a targeted attempt to reach the abuses forbidden by the [c]onfrontation [c]lause.”16 To answer, his colleague, Justice Scalia, in a footnote, pointed out: “We have acknowledged that our holding is not an ‘exhaustive’ classification of all conceivable statements — or even all conceivable statements in response to police interrogation, but rather a resolution of the cases before us and those like them.”17

Therefore, the U.S. Supreme Court not only wanted a balancing test applied, but also indicated additional prongs or circumstances should be used by courts in determining the testimonial or nontestimonial nature of any statement.

Davis as Applied in Lopez
If these four prongs are applied in Lopez, does the outcome change? Upon arrival, Officer Gaston asked, “What happened?” Ruiz then explained that Lopez had abducted him from his car with a gun. He then pointed to Lopez with his body; Lopez was standing approximately 25 feet away. A short time later, Ruiz told Officer Arias that the gun was still in the car under the passenger seat. It is important to realize that there are two separate statements under review, first the statement to Officer Gaston and the second to Officer Arias.

First prong: Was the victim explaining past or present events? It’s clear that Ruiz was explaining to Officer Gaston what had happened. Yet, the statement to Officer Arias was a fact in the present time.

Second prong: Was there an on-going emergency? Officers were on scene and the alleged perpetrator was 25 feet away. The statement to Officer Gaston was first in time, yet the emergency (kidnapping and assault) appeared over. Indeed the emergency was not ongoing.

Third prong: What was the nature of the questions asked, their primary purpose? Officer Gaston asked only one question, “What happened?” In Davis, Justice Scalia explains why the purpose of the questions is important; “The questions asked by the 911 operator were necessary to resolve the emergency, [and] even if the [911] operator’s effort was to establish the identity of the assailant it was so officers would know whether they would be encountering a violent felon.”

In Lopez, the court held Officer Gaston was asking his question to determine past events in order to initiate an investigation. However, the statement to Officer Arias was not solicited in any way. Ruiz simply told him where the gun was.

Fourth prong: The level of formality of the questions asked. Officer Gaston asked only one question, “What happened?” Justice Quince does refer to this prong, “Even though the questioning of Ruiz was not as formal as it may have been in Hammon, it seems clear that the primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution.”18

Yet Justice Quince gives no discussion of the formality of the statement of Officer Arias. Officer Arias asked no question, and as such Ruiz’s statement to Officer Arias was made through no formal questioning.

With this analysis, the Florida Supreme Court could have easily held the first statement to Officer Gaston was testimonial, while the statement to Officer Arias was nontestimonial.

Current Application of Rule
Since Lopez was decided, two cases dealing with an excited utterance have been reviewed. In both, the out-of-court statement was allowed by the trial court, Sanon v. State, 978 So. 2d 275 (Fla. 4th DCA 2008), and Paraison v. State, 980 So. 2d 1134 (Fla. 3d DCA 2008).

In Sanon, an officer and training officer were on patrol when they saw a boy talking on a cell phone, crying, and flailing his arms. The officer asked what had happened and the boy responded his father had thrown his dog off the balcony some 25 feet from the building.

The day of trial, the boy did not respond to the state’s subpoena. The trial judge allowed the boy’s prior statements over objection. On appeal, the state argued the statement was an excited utterance and nontestimonial because there was no investigation.

The Fourth District Court of Appeal held the statement was testimonial and reversed. Citing Lopez, Crawford, and Davis, Judge Klein explained: “The problem with the state’s argument is that here there was no ongoing emergency.. . . We conclude that, because there was no ongoing emergency. . . the son’s statement incriminating his father was testimonial and not admissible under Crawford.”19

The decision provides no discussion of the balancing test used in Davis.

In Paraison, an elderly woman was battered, robbed, and bound with duct tape. She was able to free herself and called emergency services and her son. Officers and her son soon arrived at her home. The elderly woman, found lying on the kitchen floor, was nervous and in shock but was able to tell the officers and her son what had happened. Before trial, the woman died. The defense moved to exclude any mention of the alleged excited utterances made to the officers. The trial court denied the motion and the defendant plead guilty reserving the right to appeal “as dispositive ‘Crawford as it relates to [her son] and as it relates to Officer Hayes.’”

The Third District Court of Appeal held 1) the statements were excited utterances; 2) the statements made to the officer were testimonial; 3) the statements to her son were nontestimonial.

The Third District Court of Appeal further found no on-going emergency at the time. However, instead of concluding its legal analysis, the Third District Court of Appeal used a balancing test, focused on the primary purpose of the statements, the time the statements were taken, and to whom they were spoken. The Third District Court of Appeal determined the statements made to the son were not for investigation, but to garner support and assistance, made minutes after her call for help, and were directed to her son.20 Therefore, the primary purpose of the statements to the son were not testimonial and properly determined to be admissible by the trial court.

Florida currently recognizes 24 hearsay exceptions.21 How will the on-going emergency rule apply to each?

Every criminal defense attorney should be sharpening briefs and readying for pretrial hearings. While Lopez dealt with an excited utterance, all 24 hearsay exceptions are up for closer review, despite any past conclusions from the district courts of appeal. Each defense attorney should be arguing the necessity of a bright-line rule. It is unknown when, or if, the Florida Supreme Court will change the on-going emergency rule for a balancing test.

Every prosecutor and law officer must get up to speed on the law. The Lopez decision is the law of the state; however, as shown by Paraison, district courts of appeal are still willing to look at the circumstances surrounding the statement.

Prosecutors also need to explain to witnesses why they need to be available. Too many times a victim or witness will slip away given the length of time for a matter to come to trial. During this time, the last thing any prosecutor wants is a witness believing he or she was not really an integral part of the investigation since they have already given their statement to an officer.

The Davis decision is clearly not the end of the testimonial/nontestimonial debate. Yet it’s unknown when a new decision will further clarify or define the terms. As pointed out by Justice Thomas in his dissent, “Two years after the Court decided Crawford, it adopts an equally unpredictable (balancing) test, under which district courts are charged with divining the ‘primary purpose’ of police interrogations.” With Lopez, Florida courts are highly constrained to make such determinations. Until clarified, the Lopez decision and its focus on the on-going emergency requirement has the possibility to create strange and uncalled-for holdings.

1 McCormick on Evidence §272. See also 6 Wigmore, Evidence §1747 (Chadbourn rev. 1976). Principally for this reason, White v. Illinois, 502 U.S. 346 (1992), ruled that statements under this “firmly rooted” hearsay exception satisfied the confrontation clause even when declarant is available but not called by the prosecution. Gross v. Greer, 773 F.2d 116, 120 (7th Cir.1985) (emphasizing limited memory and probable confusion that would be caused by cross-examination of four-year-old child, making the out-of-court statement probably the most reliable and trustworthy account of the events); Mobile & Montgomery R.R. Co. v. Ashcraft, 48 Ala. 15, 31 (1872) (“We regard these declarations as … more convincing … than the testimony to that effect of the persons themselves some time after the occurrence.”). Hutchins & Slesinger, Spontaneous Exclamations, 28 Colum. L. Rev. 432, 437 (1928); Stewart, Perception, Memory, and Hearsay: A Criticism of Present Law and the Proposed Federal Rules of Evidence, 1 Utah L. Rev. 27 (1970). Although viewed as of less importance than the reduction of conscious fabrication as a justification, the trustworthiness of statements under the exception is also enhanced because there is little danger of lapse of memory since the stimuli was recently perceived.

2 As explained by Justice Thomas: “There can be no doubt that the two exceptions we consider in this case are ‘firmly rooted.”’ The exception for spontaneous declarations is at least two centuries old. See 6 J. Wigmore, Evidence §1747, p. 195 (J. Chadbourn rev. 1976), and may date to the late 17th century. See Thompson v. Trevanion, 90 Eng. Rep. 179 (K.B.1694). It is currently recognized under Fed. R. Evid. 803(2), and in nearly four-fifths of the states. See Brief for State of California et al. as amici curiae 15-16, n. 4 (collecting state statutes and cases). The exception for statements made for purposes of medical diagnosis or treatment is similarly recognized in Fed. R. Evid. 803(4), and is equally widely accepted among the states. See Brief for State of California et al. as amici curiae 31-32, n. 13 (same).
White v. Illinois, 502 U.S. 346, 356, (1992).

3 The Florida Supreme Court also disapproved of Blanton v. State, 880 So. 2d 798 (Fla. 5th D.C.A. 2004), which had been set for the court’s review, No. SC04-1823.

4 Wash. Rev. Code §5.60.060(1) bars spouse from testifying without the other’s consent, but the Washington Supreme Court ruled this privilege did not extend to out of court statements. State v. Burden, 120 Wash.2d 371 (Wash. 1992).

5 Crawford, 541 U.S. at 40.

6 Id. at 59.

7 Id. at 61.

8 Id. at 68.

9 Mr. Lopez was originally charged with armed kidnapping and assault with a weapon. After being unable to find Mr. Ruiz for trial, these charges were dropped.

10 Affirming the decision of the First District Court of Appeal.

11 The Supreme Court answered the question that a discovery deposition does not qualify as a cross-examination of a witness. This decision overturned the Blanton decision from the Fifth District Court of Appeal and is a discussion for another article.

12 Lopez, 974 So. 2d at 347, quoting Davis at 822.

13 Id. at 346.

14 Id. at 347.

15 Davis, 547 U.S. at 822.

16 Id. at 842.

17 Id. at 830.

18 Justice Quince citing Davis at 823.

19 Sanon, 978 So. 2d at 277.

20 The court, in quoting a number of foreign jurisdiction cases, recognized that statements to family or friends are not likely to be testimonial. Paraison, 980 So. 2d at 1137.

21 As codified by Fla. Stat. §90.803.

Jonathan Olson, Tavares, is an assistant state attorney. He received his J.D. from Valparaiso University School of Law.

This column is submitted on behalf of the Criminal Law Section, L. Donald Murrell, Jr., chair, and Georgina Jimenez-Orosa, editor.

Criminal Law