STATE v. SIMMONS (2023)

Writ application denied.

Police arrived approximately two minutes after a shooting and asked the crowd that had gathered if anyone knew the victim, who at that time was dying from a gunshot wound to the head. One eyewitness responded and described the shooting, and this was recorded on a police body worn camera. The trial court found this eyewitness's statements were testimonial in nature because there was no longer an ongoing emergency. I believe that the trial court erred and I disagree with the majority's decision to deny the State's writ.

“[W]hen a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the ‘primary purpose of the interrogation’ by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs. The existence of an emergency or the parties’ perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation․ [T]he existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public.” Michigan v. Bryant, 562 U.S. 344, 370–71, 131 S.Ct. 1143, 1162, 179 L.Ed.2d 93 (2011) (footnote omitted). Here, the circumstances objectively reflect an ongoing emergency and nontestimonial purpose. Notably, the victim had just been shot moments before and the shooter was still unknown and at large. Thus, in my view, I deem the statements admissible.

Accordingly, I would grant the State's application to reverse the ruling of the district court to the extent it denied the State's motion to declare this eyewitness's statements admissible.

Crichton, J., would grant and assigns reasons. Crain, J., would grant. McCallum, J., would grant.