Opinion
Court of Appeals No. A-11642 No. 6113
11-05-2014
JAMIE M. JOHNSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Doug Miller, Law Office of Douglas S. Miller, Anchorage, for the Appellant. Matthew J. Prieksat, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-13-878 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Stephanie Rhoades, Judge. Appearances: Doug Miller, Law Office of Douglas S. Miller, Anchorage, for the Appellant. Matthew J. Prieksat, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Jamie M. Johnson appeals his convictions for fourth-degree assault and interfering with a report of domestic violence. These convictions are based on evidence that Johnson strangled and punched his girlfriend, Barbara Aitalla, and prevented her from using her phone to call for help.
After the assault, Aitalla fled from Johnson's apartment and ran to her uncle's apartment, which was located on another floor of the same building. Aitalla's uncle was not there, but another man (who was never identified) was in the apartment. When this man saw Aitalla's condition — she was bleeding, and she looked like she had been beaten — the man called 911. Initially, this unidentified man spoke to the 911 dispatcher and described why he believed that Aitalla needed help. Later during the call, Aitalla took the phone and spoke to the dispatcher herself.
At Johnson's trial, the State introduced an audio recording of this 911 call. In this appeal, Johnson argues that the statements made by the unidentified man and by Aitalla during the 911 call were inadmissible. Specifically, he argues that the statements were hearsay, and that the introduction of these statements violated his right of confrontation.
For the reasons explained here, we uphold the trial judge's decision to allow the State to introduce this evidence.
The litigation of this issue in the trial court
At the beginning of Johnson's trial, after the parties had delivered their opening statements but before the State began to present its case, Johnson asked the trial judge to prohibit the State from introducing the audio recording of the 911 call. Johnson argued that this evidence was inadmissible on two grounds: first, that it was hearsay; and second, that the introduction of this evidence would violate his right to confront the witnesses against him.
With respect to Johnson's hearsay objection, the prosecutor responded that Aitalla's statements to the dispatcher were admissible as excited utterances under Alaska Evidence Rule 803(2). The prosecutor explained that Aitalla spoke with the 911 dispatcher "immediately after the event", and that the audio recording of the 911 call showed that Aitalla was crying and "obviously upset".
With respect to Johnson's confrontation objection, the prosecutor told the judge that he "expect[ed] [Aitalla] to be here and available for cross-examination", and he argued that the unidentified man's statements to the 911 dispatcher were not "testimonial" hearsay for purposes of the confrontation clause.
After the prosecutor explained the State's position on these matters, the trial judge asked Johnson's attorney to explain why she believed that Aitalla's statements failed to qualify as excited utterances. The defense attorney answered, "I don't have a response." The defense attorney told the judge that her primary concern was Johnson's right of confrontation under the Sixth Amendment as construed in Crawford v. Washington.
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Based on the representations and arguments of the parties, the trial judge ruled that Aitalla's statements to the 911 dispatcher were admissible as excited utterances, and that there was no confrontation problem because Aitalla would be available for cross-examination at Johnson's trial.
The judge made no ruling with respect to whether the unidentified man's statements to the 911 dispatcher were likewise admissible over Johnson's hearsay and confrontation objections — but Johnson's attorney did not press the judge for a ruling on this evidence.
Why we uphold the trial judge's ruling
1. The hearsay objection to Aitalla's statements during the 911 call: The trial judge ruled that Aitalla's hearsay statements were admissible under the excited utterance exception to the hearsay rule. As we have explained, the trial judge made this ruling after (1) the prosecutor made an offer of proof as to why Aitalla's statements constituted excited utterances, and (2) Johnson's attorney told the judge that she had no response to the prosecutor's offer of proof.
Because Johnson's attorney offered no response to the prosecutor's argument that Aitalla's statements to the dispatcher were admissible as excited utterances, Johnson's current hearsay objection to those statements was not preserved for appeal. And the admission of hearsay in the absence of a proper objection is not plain error — because hearsay is admissible absent an objection.
See Pierce v. State, 261 P.3d 428, 432-33 (Alaska App. 2011), and the cases discussed therein.
See Rusenstrom v. Rusenstrom, 981 P.2d 558, 560 (Alaska 1999); Bird v. Starkey, 914 P.2d 1246, 1248 n. 1 (Alaska 1996); Savely v. State, 180 P.3d 961, 962 (Alaska App. 2008); Douglas v. State, 166 P.3d 61, 85 (Alaska App. 2007).
2. The confrontation clause objection to Aitalla's statements during the 911 call: Johnson's right to confront Aitalla was satisfied because Aitalla testified at Johnson's trial. See Crawford v. Washington, 541 U.S. at 68-69, 124 S.Ct. at 1374; Delaware v. Fensterer, 474 U.S. 15, 20; 106 S.Ct. 292, 295; 88 L.Ed.2d 15 (1985) ("[T]he right of cross-examination [is] fully satisfied in cases ... [where] the factfinder can observe the witness' demeanor under cross-examination, and the witness is testifying under oath and in the presence of the accused.").
3. The hearsay objection to the unidentified man's statements during the 911 call: The trial judge never ruled on Johnson's hearsay objection to the evidence of the unidentified man's statements to the 911 dispatcher. But Johnson's attorney never pressed the trial judge for a ruling on this issue.
A claim of error is not preserved for appeal unless the litigant (1) presents the claim to the lower court and (2) obtains a ruling on the merits of that claim. Thus, Johnson's current hearsay objection to those statements was not preserved for appeal. And as we explained earlier, the admission of hearsay in the absence of a proper objection is not plain error, because hearsay is admissible absent an objection.
See, e.g., Sengupta v. University of Alaska, 139 P.3d 572, 581 (Alaska 2006) ("[T]o preserve a claim based on [the lower] court's failure to rule on a motion, a party must make every effort to request and obtain a ruling before proceeding to trial."); Bryant v. State, 115 P.3d 1249, 1258 (Alaska App. 2005) ("Normally, an appellant may only appeal issues on which he has obtained an adverse ruling from the trial court."); Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) ("To preserve an issue for appeal, an appellant must obtain an adverse ruling.").
We also note that, given the record here, it appears that most of the unidentified man's statements to the 911 dispatcher were admissible either as statements of present sense impression under Evidence Rule 803(1) or as excited utterances under Evidence Rule 803(2).
Moreover, to the extent that any error occurred with respect to the man's statements, that error was rendered harmless because Aitalla's own statements to the dispatcher were admissible, and because Aitalla took the stand at Johnson's trial.
4. The confrontation clause objection to the unidentified man's statements during the 911 call: When Johnson raised his confrontation clause objection to evidence of the unidentified man's statements to the 911 dispatcher, the prosecutor responded that the man's statements were not "testimonial" hearsay for purposes of the confrontation clause, because those statements constituted a contemporaneous report and description of an ongoing emergency. Johnson's attorney offered no response to the prosecutor's assertion.
A few minutes later, the trial judge declared that the audio recording of the 911 call was admissible — but without making any ruling on Johnson's confrontation clause objection regarding the unidentified man's statements to the 911 dispatcher. Johnson's attorney did not press the judge for a ruling on this issue.
Because the defense attorney did not respond to the prosecutor's argument that the man's statements were not "testimonial", and because the defense attorney never pressed the trial judge for a ruling on the confrontation clause issue, we conclude that Johnson failed to preserve a confrontation clause objection to the admission of this evidence.
Nor do we find plain error. The man's statements to the 911 dispatcher do, in fact, appear to be a contemporaneous description of an ongoing emergency. Given the facts of this case, and given the United States Supreme Court's holding in Davis v. Washington, 547 U.S. 813, 827-28; 126 S.Ct. 2266, 2276-77; 165 L.Ed.2d 224 (2006), and this Court's own decision in Clark v. State, 199 P.3d 1203, 1207-08 (Alaska App. 2009), it appears that the man's statements to the dispatcher were non-testimonial.
Even if this matter were debatable, the issue is close enough that the trial judge did not commit plain error when she admitted this evidence. See Martin v. State, 297 P.3d 896, 901 (Alaska App. 2013); Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005) ("If a claim of error is reasonably debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails.").
Conclusion
The judgement of the district court is AFFIRMED.