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State v. Sykes

Supreme Court of Maine

March 26, 2019


          Argued: December 11, 2018

          Jesse James Ian Archer, Esq. (orally), Sherman & Worden, PA, Auburn, for appellant Dwain A. Sykes

          Andrew S. Robinson, District Attorney, and Patricia A. Mador, Asst. Dist. Atty. (orally), Lewiston, for appellee State of Maine

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

          HJELM, J.

         [¶1] In this case, we again consider the admissibility of statements made by the alleged victim of a domestic violence assault during a 9-1-1 call for emergency assistance, when the victim does not testify at trial.

         [¶2] Dwain A. Sykes appeals from a judgment of conviction entered in the Unified Criminal Docket (Androscoggin County, Mills, J.) after a jury found him guilty of domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A) (2018). During the trial, the court admitted in evidence a recording of a 9-1-1 call after concluding, first, that the victim's recorded statements fell within the excited utterance exception to the hearsay rule, and, second, that the statements were nontestimonial and thus not subject to exclusion by the Confrontation Clause.[1] Sykes asserts that the court erred in both respects. We affirm the judgment.

         I. BACKGROUND

         [¶3] The following facts are drawn from the evidence presented at the pretrial hearing on the admissibility of the evidence at issue here, and at trial, with both records being viewed in the light most favorable to the State, see State v. Metzger, 2010 ME 67, ¶ 2, 999 A.2d 947, and from the procedural record, see In re Child of Nicholas G., 2019 ME 13, ¶ 2, __A.3d__.

         [¶4] At the time of the assault, Sykes and the victim had been in a relationship for a number of years and shared a home where they lived with their children. On the morning of October 22, 2017, Sykes and the victim got into an argument in their residence, which was a mobile home. During the argument, Sykes twice hit the victim in her face with a closed fist. At approximately 9:30 a.m., the victim called 9-1-1 to report the assault and request police assistance. During the call, which lasted fourteen minutes, the victim sounded distressed and sometimes angry but was not audibly crying. Largely in response to the 9-1-1 dispatcher's questions, the victim described the assault, which she said had occurred that morning. Most of the dialogue, however, concerned what was then happening in the residence. Answering the dispatcher's questions, the victim told the dispatcher that Sykes was in an adjacent room in the home with three children and was aware that she had called 9-1-1. The victim also answered the dispatcher's questions about Sykes and what he was doing, about the house, and about potential safety concerns for both the victim and the officers who were en route to the scene.

         [¶5] The dispatcher told the victim several times that officers were travelling to the scene but that she would keep the victim on the line until they arrived. Approximately ten minutes into the call, the dispatcher told the victim to instruct Sykes to go outside and wait for the officer. When the victim conveyed that information to Sykes, a loud and angry-sounding male voice is heard. Over the next several minutes, the dispatcher asked the victim a number of times whether Sykes was still in the residence, and each time the victim reported that he was. Finally, near the end of the call, the victim told the dispatcher that an officer had arrived and Sykes had gone outside. At a number of points during the call, between the dispatcher's questions, there were lengthy periods when neither the dispatcher nor the victim spoke.

         [¶6] The first police officer to arrive was a Maine State Police trooper. After a brief conversation with Sykes outside of the residence, the trooper spoke with the victim, who reported that Sykes had punched her twice in the face. The trooper then returned to Sykes and arrested him.[2] A second officer, a sergeant with the Maine State Police, arrived at the home and spoke with the victim. In the course of their conversation, the victim reenacted the assault and described to the sergeant how Sykes had hit her. Although she allowed the officer to take pictures of her injury, she declined to sign a written statement.

         [¶7] About two weeks later, Sykes was charged with domestic violence assault and pleaded not guilty. Anticipating the possibility that the victim would not voluntarily testify against Sykes, the State served the victim with a subpoena compelling her attendance at trial, which the court had scheduled for April of 2018. On the day the trial was scheduled to begin, however, the victim did not appear at the courthouse. At the State's request, the court issued a material witness warrant for the victim's arrest, see M.R.U. Crim. P. 17(h), and the State filed a motion in limine, requesting the court to determine the admissibility of the three sets of statements made by the victim on the morning of the assault, including the statements she made during the 9-1-1 call. Over Sykes's objection, see supra n.l, the court delayed the commencement of trial to the next day and proceeded to hold an in limine hearing.

         [¶8] During the hearing on the motion in limine, the court heard testimony from the 9-1-1 dispatcher and listened to the recording of the 9-1-1 call. The court ultimately determined that the victim's statements during the 9-1-1 call, although hearsay, were admissible as excited utterances, see M.R. Evid. 803(2), and were nontestimonial and thus not barred from being admitted in evidence by the Confrontation Clause, see U.S. Const, amend. VI; see also Me. ...

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