Right to confrontation; The Confrontation Clause; Whether statements made to the police were testimonial; Davis v Washington; Hammon v Indiana; Michigan v Bryant; Primary purpose of the interrogation; Whether there was an ongoing emergency

The court concluded that the declarant’s statements to Officer S “were testimonial because the primary purpose of [S’s] interrogation of the declarant was to establish or prove past events, and the declarant’s statements were an obvious substitute for live testimony.” Thus, they were subject to the Confrontation Clause. The “case arose after defendant allegedly assaulted his ex-girlfriend, the declarant.” The court found that this “case bears similarities to Davis, Hammon, and Bryant, but is also distinguishable from each case in significant ways.” For instance, it involved “domestic violence like Davis and Hammon, but the perpetrator here, like the perpetrator in Bryant, possessed a gun and his location was unknown when the declarant spoke to the police.” But the court found that “these similarities and dissimilarities are ultimately beside the point because, as Bryant teaches, determining the primary purpose of an interrogation is highly context dependent.” Thus, it turned “to the context in which the declarant made her statements to” S. Based on the facts, the court thought “it obvious that the primary purpose of this interrogation was ‘to establish or prove past events potentially relevant to later criminal prosecution.’” This conclusion was “buttressed by the formality of [S’s] interrogation of the declarant.” The court also disagreed “with the trial court’s conclusion that there was an ongoing emergency.” While it agreed “that defendant posed an ongoing (hypothetical) threat to the declarant, he did not pose an immediate threat to her.” Rather, the court noted that “when the declarant spoke with [S], she was inside a residence, removed from defendant, and protected by police.” And while it was “also true that defendant was armed like the defendant in Bryant, defendant here, unlike the defendant in Bryant, was ‘a known and identified perpetrator’ who was accused of domestic violence against the declarant.” The court concluded that nothing about the “facts, when viewed objectively, suggest that defendant posed a risk to public safety, even considering that [he] was armed. Indeed, the trial court did not reason that defendant posed a danger to public safety; it reasoned that [he] posed a risk to ‘the public’ in the sense that he posed a hypothetical risk to anyone around the declarant. But, as Bryant counsels, it is simply not the case ‘that an emergency is ongoing in every place or even just surrounding the victim for the entire time that the perpetrator of a violent crime is on the loose.’” Reversed.