Wednesday, March 15, 2006

Pretrial hearing gave sufficient confrontation

Division 1 rules that a 911 call is admissible, despite the declarant being unavailable at trial, because the defendant had an opportunity to examine her in a pre-trial hearing. State v. Mohamed, --- P.3d ----, 2006 WL 598146 (Wash. App. March 13, 2006), Westlaw (Becker, J.).

In the 911 call, the caller said that the defendant, her ex-boyfriend, had come to her apartment, and beaten her. She had a court order prohibiting him from contacting her. Police arrived while she was still on the phone and found the defendant outside in a car. They described her as crying, hysterical, and bleeding from the mouth.

Before trial, the State proposed to admit the 911 call and the complainant's statements to the officers. The defense wanted to exclude them, and so the court held a pretrial hearing to determine whether they met the requirements for the excited utterance exception. At the hearing, defense counsel asked the complainant about the events and she said that she had lied on that night. In fact, she had seen the defendant with another woman, become jealous, and fought with the woman.

The complainant was not available at the time of the trial. Could the prosecution introduce the hearsay evidence? The trial court ruled -- and Divison 1 affirmed -- that it could. The pretrial hearing provided the defendant the opportunity to confront his accuser demanded by Crawford, and the defense was able to introduce the complainant's hearing testimony at trial for the jury to weigh.

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