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The Sixth Amendment to the U.S. Constitution provides that a criminal defendant “shall enjoy the right….to be confronted with the witnesses against him…” Likewise, The Georgia Constitution provides that a criminal defendant “shall be confronted with the witnesses testifying against such a person.” Art. I, Sec. I, Paragraph XIV. The State will often allege that the statements of absent drivres are part of the res gestate as an except to the hearsay rule. However, in Crawford v. Washington, 541 U.S. 36, 53, 124 S.Ct.1354, 1365 (2004), the Supreme Court of the United States held that an out-of-court statement that is “testimonial” in nature is inadmissible in criminal prosecutions, under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statement is deemed reliable by the court. Though the Court declined to provide a complete definition of testimonial evidence, the court provided a partial definition explaining that testimony is: “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, supra, at 51, 124 S.Ct. 1364. The Georgia Court of Appeals has held that testimonial statements generally “include statements made by witnesses to government officers investigating a crime. [Cits.]” Lindsey v. State, 282 Ga. 447, 452(4), 651 S.E.2d 66 (2007). The Georgia Supreme Court “refused to define ‘testimonial,’ but expressly stated that the term did apply, inter alia, to ‘police interrogations.’ [Cit.]” Watson v. State,278 Ga. 763, 768(2)(b), 604 S.E.2d 804 (2004) Since Crawford, however, the United States Supreme Court has given somewhat more precise guidance as to which police interrogations produce testimony:
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. Davis v. Washington, 547 U.S. 813, 822(II), 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)(that the Confrontation Clause applies only to testimonial hearsay). See also Pitts v. State, supra (predating Davis, but containing a remarkably similar analysis).Statements made by witnesses to police officers investigating a crime are testimonial in nature “when the primary purpose” of the statements is “to establish or prove past events potentially relevant to later criminal prosecution.” Cuyuch v. State ,284 Ga. 290, --- S.E.2d ----,(2008). Such testimonial statements may not be admitted into evidence unless the requirements of Crawford are satisfied. Id. On the other hand, however, statements made by witnesses to questions of investigating officers are nontestimonial when they are made primarily “to enable police assistance to meet an ongoing emergency.” Id. Such nontestimonial out-of-court statements are admissible if they meet one of this State's hearsay exceptions. Id. Moreover, as the Supreme Court emphasized in Davis, when police questioning of a witness exists, “it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.” An examination of the Supreme Court's application of these principles to Davis and its companion case, Hammon v. Indiana, is useful to resolving the present case. In Davis, a woman, Michelle McCottry, called 911 and described an ongoing emergency to the 911 operator, telling the operator that “he” was hitting her and “jumpin' on” her. In response to a question by the operator, the caller gave the operator the perpetrator's name, Adrian Davis, and then told the operator that he had run out the door and left in a car. In Hammon, the police responded to a report of domestic abuse and found Ms. Hammon on the front porch of her home. She told the officer that there was nothing wrong, but when the police entered the house (with Ms. Hammon's permission), they saw broken glass on the floor and a damaged gas heating unit. Mr. Hammon, who was in the kitchen, told the officers that he and his wife had been in an argument but that he had not physically assaulted her. Upon questioning by one of the officers, however, Ms. Hammon stated that Mr. Hammon had broken the furnace, hit her in the chest, and thrown her onto the broken glass. In Davis, the Court concluded that the questions by the 911 operator had not produced testimonial statements. The Court reasoned that statements made during an interrogation that established “facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator” would be testimonial.
The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. In Hammon, the Court concluded that Ms. Hammon's statements were testimonial, as there was no emergency in progress and as the statements she made in response to police questions recounted “potentially criminal past events.” The Court stated that, because Ms. Hammon's statements “were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were ‘initial inquiries' is immaterial” and did not detract from the conclusion that the statements were testimonial.In a DUI case most often you are faced with callers from the road or drivers who stop and offer information to police. Many times these witnesses do not show up for court. The question becomes who statements are admissible without the witness and whose statements are excluded as violating the right to confront witnesses against you. It is a area of shades of gray. If the driver is following a driver who is weaving continuously while the caller is on the phone, it would seem to be non-testimonial or attempting to prevent an emergency but how do you know if the driver is really DUI. Maybe he is eating a burger or sending a text message? What if the weaving suddenly stops? Is the emergency over? Is the statement now testimonial and inadmissible. What if the driver pulls off the side of the road? He could start driving again but is not moving now and motion is required for a DUI conviction.
Further, even if the Court finds that this communication was non-testimonial. If the caller can not put a time fram on the driving, it does not fit into a hearsay exception. In Jones v. State, 167 Ga. App. 847 (1983), the Georgia Court of Appeals found that hearsay statements made by a witness that a vehicle had hit a pedestrian at some indeterminate period in the past was not admissible as res gestate as it is a mere narrative rather then a declaration accompanying the incident.
Without the statements of these absent witnesses, the reason for the stop of DUI Defendants with blue lights often disappear and renders the entire seizure without articulable suspicion and illegal. State v. Stilley, 261 Ga.App. 868, 584 S.E.2d 9 Ga.App.,2003. (“[A]n officer may conduct a brief investigative stop of a vehicle only when such a stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” The stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Therefore, the stop must be suppressed as violating the 4th Amendment to the U.S. and Georgia Constitutions. Although a police officer may act out of a desire to be solicitous, if he suspects wrongdoing, he must comply with the Fourth Amendment, which requires that he have some objective basis for suspecting criminal conduct before stopping the car. And the mere fact that a person leans forward over a steering wheel, without more, does not provide a sufficient basis for suspecting that the person is or is about to be engaged in criminal conduct). The stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Therefore, the stop must be suppressed as violating the 4th Amendment to the U.S. and Georgia Constitutions. Although a police officer may act out of a desire to be solicitous, if he suspects wrongdoing, he must comply with the Fourth Amendment, which requires that he have some objective basis for suspecting criminal conduct before stopping the car. And the mere fact that a person leans forward over a steering wheel, without more, does not provide a sufficient basis for suspecting that the person is or is about to be engaged in criminal conduct).            |
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