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Use of 911 Recorded Call in an Arizona Aggravated Assault Case

phoneIn a recent Arizona appellate case, the defendant appealed his conviction for domestic violence, dangerous offenses, Class 3 felonies, and two counts of aggravated assault. He argued that it was a mistake for the court to admit a 911 call recorded by a victim.

The case arose in 2014 when the defendant got involved in a domestic violence quarrel with his wife. He pointed a gun at her and her mother. The mother called 911, and during the call they discussed what was happening. The mother said her daughter’s husband was threatening them with a gun that he’d just put down during her visit. The mother couldn’t be found to testify at trial.

The defendant tried to preclude evidence of the 911 recording on the grounds that it was made to a law enforcement officer and was used to prove past events that would be relevant to a later criminal prosecution. The lower court denied the defendant’s motion in limine and found that the 911 call could be admitted under the excited utterance exception to the rule against hearsay evidence under Arizona Rules of Evidence 803(2). The court found the mother’s comments weren’t testimonial for the purposes of the Confrontation Clause.

The mother didn’t testify at trial, and the recording was admitted into evidence. Ultimately, the defendant was found guilty and sentenced to five-year concurrent terms in prison and a certain amount of credit for the time already spent imprisoned.

The defendant appealed, arguing that the admission of the recording violated his Sixth Amendment right to be confronted with the witnesses against him. The appellate court reframed the issue, explaining that since the mother didn’t testify, the crucial issue was whether what she’d said in the 911 call could be considered testimonial for Sixth Amendment purposes. The appellate court explained that 911 calls had to be analyzed on a case-by-case basis to decide whether particular statements should count as testimonial.

The appellate court explained that just because a statement was an excited utterance didn’t mean it was immediately removed from an analysis under the Sixth Amendment’s Confrontation Clause. Instead, the circumstances would dictate the analysis. The court explained that comments are testimonial when the circumstances show there’s no ongoing emergency, and the primary goal of questioning is to prove prior events that may be relevant to criminal prosecution later. Therefore, the main issue is whether the questioning’s primary goal was to focus on ending a threat or to prove the past event that could be relevant to criminal prosecution later.

The appellate court found that in this case, the mother’s statements weren’t testimonial. The comments were made within the first 30 seconds of the call, while the assault was happening rather than after it had happened. The mother gave a play-by-play account of what was happening in order to get help for an emergency. The court explained that a 911 call that is mainly a loud cry for help, as this one was, is non-testimonial. The convictions and sentences were affirmed.

If you face violent crime charges in Tempe, Chandler, Gilbert, or Scottsdale, consult attorney James E. Novak. He is an aggressive former Maricopa County Prosecutor who can use insights obtained as a prosecutor to determine a strong strategy. He offers a free initial consultation for people facing active criminal charges in his area. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.

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