Criminal Law Blog

Keep it out! Know the factors that make a hearsay statement testimonial


Andrew Wills v. United States (decided October 13, 2016).

Players: Associate Judges Beckwith and McLeese, Senior Judge Reid.  Opinion by Judge Beckwith.  Christine Pembroke for Mr. Willis.  Trial judge: Rhonda Reid Winston.

Facts: MPD Sergeant Brett Parson responded to a report of an assault in progress at a gas station and saw a man and woman next to a yellow Mustang.  Sergeant Parson motioned for the woman to come over to him and asked whether she was okay.  The woman said she was, and told Sergeant Parson that the man had her keys.  Sergeant Parson asked how she got the keys, and she responded, “He snatched them from me.”  At Mr. Wills' trial on second-degree theft and assault charges, Sergeant Parson identified Mr. Wills as the man at the gas station.  The woman did not testify at trial.

Issue: Whether the introduction of the woman’s statement that Mr. Wills “snatched [the keys] from me” violated the Confrontation Clause.

Holding:  Yes.  This out-of-court statement by a witness who did not testify at trial was “testimonial” and therefore inadmissible.  See Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006).

 Of note: The Court analyzed the following factors in determining that there was no ongoing emergency and that the primary purpose of the interrogation was “to establish or prove past events potentially relevant to later criminal prosecution,” making the statement testimonial:

  • When Sergeant Parson arrived, the incident was over, and the scene was not volatile or chaotic; people coming and going from the gas station “didn’t pay much of a mind” to what was happening.
  • Sergeant Parson had the support of at least two other officers. 
  • The woman was immediately separated from Mr. Wills. 
  • There was no evidence that Sergeant Parson saw any weapons. 
  • Mr. Wills and the woman were not fighting or arguing.
  • The woman was crying and breathing heavily butshe had no apparent injuries.
  • Mr. Wills was still on the scene during the interview and the woman looked back at him as she walked over to Sergeant Parson but Sergeant Parson separated her by merely motioned for the woman to come over to him, rather than by drawing his gun or ordering Mr. Wills to the ground.
  • The woman immediately assured Sergeant Parson that she was okay.
  • By the time Sergeant Parson asked the woman how Mr. Wills came to possess her keys, another officer was with Mr. Wills and there was no reason for Sergeant Parson to think that the woman was still in danger. 
  • The woman did not appear to be seeking physical protection or medical assistance when she was responding to police questions.  Rather, she was describing the circumstances of the earlier incident.  NG

Read full opinion here.