BAKER V. COM.
CRIMINAL: TESTIMONIAL HEARSAY, SELF-INCRIMINATION, CONFRONTATION CLAUSE
2006-CA-000498
PUBLISHED: AFFIRMING
PANEL: COMBS PRESIDING; NICKELL AND WINE CONCUR
COUNTY: FAYETTE
DATE RENDERED: 09/14/2007

TC properly admitted tape recording containing statements immediately following drug buy. Cooperating witness Daniel’s recorded comments were not sufficiently formal to fall within the realm of testimonial hearsay. Therefore, the Confrontation Clause was not implicated. There was no likely possibility that the result of the trial would have been different even if Daniel’s statements had not been introduced to the jury. On the recording, some time after the events of the drug buy itself, cooperating witness Daniel could be heard commenting on Officer Burch’s statement that he had purchased drugs with the remarks, “Yes, you did. You gave that to him, and he had his hand out.” Later in the recording, while Burch was giving his summary of the events surrounding the buy, Daniel could again be heard saying, “They’ve got ‘Percocet’ wrote right on them,” in reference to the pills purchased from Baker.

Accordingly, the sole question that we must consider as to Baker’s claim for relief under the Confrontation Clause is whether Daniel’s statements were testimonial in nature. Daniel’s statements in this case are clearly a description of past events – albeit very recently past. They were not made in the context of an ongoing emergency, and they were not made during the actual course of the drug buy as it was occurring. The statements undoubtedly implicated Baker as being involved in criminal activity. These facts, taken together, suggest that the statements were testimonial in nature. However, CA concluded that Daniel’s statements to Detective Burch were not sufficiently formal to implicate the Confrontation Clause. Daniel’s comments were unprompted, unsolicited, and spontaneous and were not the result of any prompting from Burch. We also note that the situation surrounding Daniel’s statements was somewhat unique in that she was doing nothing more than verifying a version of events that Detective Burch had personally witnessed. Because of his own direct involvement, Burch had full knowledge of what had occurred. He was not conducting a formal post-incident investigation that required reliance on any information that Daniel provided him. He himself had been a participant, and Daniel was not telling him anything that he did not already know. Daniel’s statements were not made under formal conditions that would give a witness time for reflection.

Digested by Scott C. Byrd
www.Olginandbyrd.com