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THE SUPREME COURT OF THE UNITED STATES

FALL TERM, 2010

DOCKET NO. 01-01234

FRANK BOOTH,

Petitioner,

v.

THE PEOPLE OF THE STATE OF ACADIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE UNITED STATES

Brief for Petitioner

Advocate #P2

Issue #2

Gina Giacopuzzi – (XXX) XXX-XXXX


TABLE OF CONTENTS

TABLE OF AUTHORITIES..........................................ii

QUESTION PRESENTED.............................................1

OPINIONS BELOW.................................................1

CONSTITUTIONAL PROVISIONS AND RULES............................1

INTRODUCTION...................................................2

STATEMENT OF THE CASE..........................................3

ARGUMENT.......................................................5

I. THE CONFRONTATION CLAUSE OF THE U.S. CONSTITUTION BARS THE


ADMISSION OF TESTIMONIAL STATEMENTS.......................5

a. There was no ongoing emergency because Beaumont faced


no further physical threat and the danger had
dissipated...........................................6

b. Beaumont’s statements were testimonial because he was


describing recent, but past, criminal activity......10

c. Beaumont’s statements were testimonial because the


nature of the interrogation was to obtain information
related to past criminal activity...................11

d. Even though the interrogation took place on the street,


Beaumont’s statements were responses to inquiries by
officers and separate from the crime
scene...............................................14

CONCLUSION....................................................15

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TABLE OF AUTHORITIES

Cases

Davis v. Washington
547 U.S. 813 (2006).......5, 6, 7, 8, 9, 10, 11, 12, 14, 15

Crawford v. Washington
541 U.S. 36 (2004).....................................5, 6

State v. Kirby
280 Conn. 361 (2006)...................................8, 9

State v. Lewis
235 S.W.3d 136 (Tenn. 2007)..............................11

State v. Koslowski
166 Wash. 2d 409 (2009)..........................12, 14, 15

Collins v. State
873 N.E.2d 149 (Ind. Ct. App. 2007)..................13, 14

Constitutional Provisions

U.S. Const. amend. VI. .........................................2

Other Authorities

Jeffrey L. Fisher, What Happened—And What Is Happening—To the


Confrontation Clause
15 J.L. & Pol’y 587 (2007)................................7

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QUESTION PRESENTED

Issue 1: Whether preliminary inquiries of a wounded citizen

concerning the perpetrator and circumstances of the shooting are

nontestimonial because they were “made under circumstances

objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing

emergency,” including not only aid to a wounded victim, but also

the prompt identification and apprehension of an apparently

violent and dangerous individual?

OPINIONS BELOW

471 Ac. 359 (2009)

CONSTITUTIONAL PROVISIONS AND RULES

U.S. Const. amend. VI

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INTRODUCTION

Issue 1:

The Confrontation Clause of the Constitution protects a

criminal defendant’s right to confront adverse witnesses and bars

admission of testimonial, out-of-court statements against

criminal defendants. Petitioner Frank Booth challenges the

admission of out-of-court statements made by Jeffrey Beaumont, on

the grounds that they were made for the purpose of establishing

or proving past events relevant to his later trial, and thus

testimonial. As this Court has held that statements similar to

those made by Beaumont are testimonial, Petitioner respectfully

requests that this Court reverse the Acadia Supreme Court.

The statements at issue were made by Beaumont outside an

all-night restaurant, which he had driven to after being shot in

the stomach. He called the police, who proceeded to wait with

him until emergency medical services (EMS) arrived and ask him

questions about what had happened, who had shot him, and where

the shooting had occurred. Beaumont calmly recounted the

circumstances of the earlier crime. When EMS arrived, the police

proceeded to Booth’s house.

The primary purpose of the interrogation was to establish or

prove past events, potentially relevant to a later criminal

prosecution. First, a reasonable listener would recognize that

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Beaumont was not facing an ongoing emergency because any danger

had dissipated, and his statements were not a cry for help in the

face of a physical threat. Second, his statements recounted past

events, in the past tense, rather than events as they were

actually happening to him. Third, the nature of the

investigation was to learn what happened in the past to Beaumont

at a separate location, not to elicit statements necessary to

address Beaumont’s injuries. Finally, the formality of the

interrogation was evidenced by Beaumont’s calm responses in a

question-answer sequence with police officers.

STATEMENT OF THE CASE

On October 13th, at 3:25 a.m., police officers arrived at an

all-night restaurant in response to a call about a possible

gunshot victim. (R. at 37). Jeffrey Beaumont was lying on the

ground outside, with what appeared to be a gunshot wound to the

abdomen. Id. The officers called for emergency medical services

(EMS), and waited with Beaumont until they arrived. (R. at 37-

38). At no point did the officers draw their weapons, take up a

defensive position, request back up, or search the surrounding

area. (R. at 38).

Beaumont appeared coherent and calm. (R. at 37). The

officers asked him what had happened, who had shot him and where

the shooting had occurred. Id. Beaumont recounted how he was

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outside his neighbor’s door at about 3:00 a.m., speaking with

someone through the door. Id. The door remained closed, but

Beaumont believed the individual on the other side to be Frank

Booth. Id. A gunshot was fired through the door and struck him

in the stomach. Id. Beaumont then left the scene, entered his

vehicle, and drove six blocks away, to the restaurant. (R. at

38). It was from the restaurant that he called for the police on

a pay phone. Id.

After EMS arrived, the officers left the scene and proceeded

to Booth’s residence. Id. They took up a tactical formation

around the house, drew their weapons, and called for back up.

Id. They did not approach the home until back up arrived. Id.

They found the scene as Beaumont had described, but a thorough

search of the home revealed no firearms or Booth himself. Id.

Booth was later apprehended in Illinois and extradited back to

Acadia to stand trial. Id. Beaumont later died of his injuries.

Id. Booth was convicted of second-degree murder. Id.

Booth, the petitioner, argues that the statements given by

Beaumont at the scene of the crime were improperly admitted at

trial. Id. The Court of Appeals reversed the trial court’s

decision to admit the statements, holding them testimonial and a

violation of Booth’s Sixth Amendment Confrontation Clause rights.

Id. Under the U.S. Supreme Court’s ruling in Davis v.

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Washington, 547 U.S. 813 (2006), the Court of Appeals determined

that the primary purpose of the statements was to establish or

prove past events potentially relevant to a later criminal

prosecution. (R. at 38). The Acadia Supreme Court reversed,

finding the statements non-testimonial. Id. Booth now appeals,

asking this court to reverse the Acadia Supreme Court’s ruling as

a violation of his Constitutional rights, and find the statements

testimonial.

ARGUMENT

I. THE CONFRONTATION CLAUSE OF THE U.S. CONSTITUTION BARS THE


ADMISSION OF TESTIMONIAL STATEMENTS.

The Confrontation Clause of the 6th Amendment protects a

criminal defendant’s right to confront adverse witnesses. U.S.

Const. amend. VI. In Crawford, the Supreme Court interpreted the

Confrontation Clause to bar admission of statements that qualify

as testimonial hearsay, unless the declarant was unavailable and

defendant had a prior opportunity to cross-examine the declarant.

Crawford v. Washington, 541 U.S. 36, 68 (2004). It found that

the principle evil at which the Confrontation Clause was directed

was the admission of ex parte examinations as evidence against

the accused. Id. at 50. The Court left open the question of

what makes out-of-court statements testimonial, while noting that

statements taken by police officers are testimonial “under even a

narrow standard.” Id. at 52, 68.

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In a subsequent case, the Supreme Court held that statements

are testimonial when the circumstances objectively indicate that

there is no ongoing emergency, and that the primary purpose of

the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution. Davis v.

Washington, 547 U.S. 813, 822 (2006). To determine the primary

purpose of an interrogation, the Court considered whether a

reasonable listener would recognize that the declarant was facing

an ongoing emergency; whether the declarant was speaking about

events as they were actually happening, rather than describing

past events; the nature of the statements and questions; and the

level of formality of the interrogation. Id. at 827. These

factors illustrate the high premium placed on a criminal

defendant’s rights under the Constitution. Testimonial hearsay

is the primary object of the Confrontation Clause, and

interrogations by law enforcement officers fall squarely within

that class. Id. at 823.

a. There was no ongoing emergency because Beaumont faced


no further physical threat and the danger had
dissipated.

To determine if a reasonable listener would recognize the

victim was facing an ongoing emergency, Davis looked to whether a

victim’s statements were a cry for help against a bona fide

physical threat or whether a crime was still in progress, both of

which would render the statements non-testimonial. Davis, 541

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U.S. at 827. In Davis, the victim was literally crying for help

as her boyfriend was beating her. Id. at 828. In Davis’

companion case, Hammon, the victim said things were fine and the

police proceeded to ask her questions. Id. at 830. Hammon found

that, since the assault had ended before the statements were

made, the danger had dissipated. Id. at 829-30. It

distinguished from Davis in finding that there was “no immediate

threat” to the victim. Id. at 830.

The Court also noted that a conversation beginning as an

interrogation to determine the need for emergency assistance

could evolve into testimonial statements, once that purpose had

been achieved. Id. at 828. In that case, information needed to

address the “exigency of the moment” would be non-testimonial,

but the lower courts should redact or exclude portions of the

statement that became testimonial. Id. at 828-29. As one law

review article put it, “The emergencies in [Davis and Hammon]

were limited to the criminal events themselves, and when those

events ceased occurring, statements describing how they had

transpired were testimonial.” Jeffrey L. Fisher, What Happened—

And What Is Happening—To the Confrontation Clause, 15 J.L. &

Pol’y 587, 614 (2007). While Davis didn’t address severe

injuries as constituting an ongoing emergency, consistent with

the Court’s approach to the evolving nature of statements was

State v. Kirby, 280 Conn. 361, 383-86 (2006), finding statements

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made after the victim had escaped testimonial, since “although

[she] might have needed emergency medical assistance at the time

she made the call, the bulk of her conversation with Gomes

nevertheless consisted of her account of a crime that had

happened to her in the recent past, rather than one that was

happening to her at the time of the call.” Kirby determined that

the primary purpose of the declarant’s statements was not to

solve an ongoing emergency or crime in progress. Id. at 384.

As in Hammon, when the police officers arrived at the

restaurant and found Beaumont lying on the ground, injured, there

was no indication that he was in any immediate danger or that the

crime was ongoing. Like Hammon, the danger had passed. Unlike

Davis, the victim was not still being attacked. At no time did

the officers take up a defensive position, draw their weapons, or

canvass the area. This showed a lack of any expectation on the

officers’ part that there was an ongoing crime and they would

encounter a violent individual in the vicinity—especially when

compared to their behavior upon arriving at Booth’s house later.

Objectively, any emergency that had occurred was over. Beaumont

had driven six blocks away from Booth’s home, and was protected

by officers at the time of his statements. The crime to which his

statements related, and any possibility of further injury, was

clearly ended by Beaumont’s distance from the crime scene and the

presence of the officers. See Kirby, 280 Conn. At 383-86

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(holding that any emergency had ended because the crimes were no

longer in progress, the victim was rendered protected by law

enforcement’s presence, and the perpetrator was some distance

away—the victim “already had escaped”).

Nor was the substance of Beaumont’s statements a cry for help

in the face of an ongoing emergency. His statements were not

made for the purpose of “proclaim[ing] an emergency and seek[ing]

help” such as those in Davis. Davis, 547 U.S. at 828. They were

more analogous to those in Hammon, since the attack had ended and

he was responding to questions. Even if this Court accepted the

contention of the Acadia Supreme Court that a severe injury

constitutes an ongoing emergency in and of itself, under Davis,

the determination of Beaumont’s need for emergency assistance had

been met and his statements were thereafter testimonial. The

officers had called for EMS. Beaumont’s statements did not relay

to the officers information needed to address the “exigency of

the moment.” Davis, 541 U.S. at 828. Instead, the purpose of

his statements was to relay to the officers what had occurred,

similar to Kirby. As the Acadia Supreme Court dissent noted, “If

the primary purpose of the statement is to resolve that injury

the statement should focus on the injury.” (R. at 43).

Beaumont’s statements regarding his beliefs about the identity of

the perpetrator and what transpired during the crime did not do

so.

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The Acadia Supreme Court’s contention that a criminal act

continues until the victim’s injuries are treated is untenable

under Davis. (R. at 40). It would result in admission of any

number of testimonial statements long after any crime had ended

and long after any danger had passed, so long as some of the

victim’s injuries were in some way untreated.

b. Beaumont’s statements were testimonial because he was


describing recent, but past, criminal activity.

The second factor considered in Davis is whether the victim

was speaking about events as they were actually happening, rather

than describing past events. Davis, 541 U.S. at 827. In Davis,

the 911 caller, McCottrey, was describing events as they happened

to her—“He’s here jumpin’ on me again… He’s usin’ his fists”—and

her statements were held to be testimonial. Id. at 818, 828. In

Hammon, the victim, Amy’s statements were past-tense responses to

questions about what had occurred and what her husband had done

to her, and they were held to be non-testimonial. Id. at 820-21,

830. “McCottrey’s present-tense statements showed immediacy;

Amy’s narrative of past events was delivered at some remove in

time from the danger she described,” the Court explained. Id. at

831-32. See also State v. Lewis, 235 S.W.3d 136, 147 (Tenn.

2007) (finding that where the victim had been shot minutes

earlier and gave descriptions of “recent, but past” activity, the

statements were testimonial).

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In this case, Beaumont was describing past events, rather than

describing events that were actually happening to him. He

recounted the sequence of events, in response to the officers’

past-tense questions (“what had happened, who had shot him, and

where the shooting had occurred” (emphasis added)), in sharp

contrast to the statements in Davis. Beaumont’s statements were

closer to those in Hammon: They were statements about “what had

occurred” in the past. Davis, 547 U.S. at 820-21. They were a

narrative of the shooting, delivered at some remove in time from

the actual shooting.

c. Beaumont’s statements were testimonial because the


nature of the interrogation was to obtain information
related to past criminal activity.

The third factor considered in Davis was whether the nature of

what was asked and answered, objectively, was such that the

elicited statements were necessary to resolve a present emergency

or to learn what had happened in the past. Davis, 541 U.S. at

827. In Hammon, the Court looked to whether the primary purpose

of the interrogation was to investigate a possible crime,

rendering the interrogation non-testimonial. Id. at 830. The

Court found that the primary purpose of the officer’s inquiry was

to find out “what happened.” Id. The Court reasoned that such

statements, deliberately recounted in response to police

questioning, were an obvious substitute for live testimony

“because they do precisely what a witness does on direct

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examination.” Id. See also State v. Koslowski, 166 Wash. 2d 409,

425-27 (2009) (where the officers were the first to arrive on

scene but the nature of the interrogation was for the purpose of

identifying and apprehending armed suspects—it was not necessary

to resolve a present emergency). Hammon further held that, just

because a police officer’s interrogation amounted to “initial

inquiries” at the scene of the crime did not make them

testimonial, unless the statements provided information that

would enable officers immediately to end a threatening situation.

Davis, 547 U.S. at 832.

Similar to Hammon, the police officers were investigating a

possible crime by determining what had happened, who had shot

Beaumont, and where it had occurred. Such elicited statements

were not necessary to resolve the present situation; that is,

Beaumont’s gunshot wound. Although the officers were the first

on scene and their questions were “initial inquiries,” Beaumont’s

answers did not immediately assist the officers in ending a

threatening situation. They functioned instead as a substitute

for live testimony, as defined in Davis. Recounting what

happened, where, and to whom, is precisely what a witness does on

the stand and precisely what Beaumont did here. Similar to the

officers in Koslowski, the nature of the officers’ focus was on

identifying and apprehending the suspect as soon as EMS arrived,

as evidenced not only by their inquiries but also by the fact

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that they proceeded immediately thereafter to Booth’s residence

to apprehend him. Statements used by officers in their

investigation of a past possible crime, as here and in Hammon,

are testimonial.

Respondent may argue that some lower court cases have held

that even where the nature of the interrogation was directed at

identifying the perpetrator, after the crime was completed, those

statements can be non-testimonial. In Collins v. State, 873

N.E.2d 149, 154-55 (Ind. Ct. App. 2007), the court found that the

questions asked had the primary purpose of enabling police to

meet an ongoing emergency, i.e., the capture of an alleged

murderer, and the questions were designed to meet the current

emergency by establishing the shooter’s identity. Even if this

Court chose to accept the reasoning of the Indiana Court of

Appeals in Collins, that case is distinguishable because the

statements took place when the declarant still feared for his

life. Id. at 155. The nature of the interrogation was to meet

an ongoing emergency because the perpetrator still posed a

present danger—he was at large, driving around after dropping off

the declarant, and could very possibly have come back and killed

him. Id. at 152, 154. The capture of the murderer was necessary

to meet the exigency of the situation. In the present case,

Beaumont had fled the scene and the shooter presumably had no

idea where he was. The nature of the interrogation didn’t focus

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on preventing further harm to Beaumont as it did in Collins.

Moreover, other lower courts have found the fact that a suspect

was still at large irrelevant. Koslowski, 166 Wash. 2d at 426-

28. This approach is more consistent with Davis’ broader holding

that the purpose of the statements is most important, and in this

case, the purpose of the interrogation was to establish past

events.

d. Even though the interrogation took place on the street,


Beaumont’s statements were responses to inquiries by
officers and separate from the crime scene.

The final factor the Davis court considered was the

formality of the interrogation, taking into account whether the

victim was responding calmly or frantically to questions, and

whether the interrogation took place at the scene of the crime or

at a police station. Davis, 541 U.S. at 827. In Hammon, the

court found that “it was formal enough” that the victim’s

interrogation was conducted in a separate room from where the

perpetrator was located. Id. at 830. The court distinguished

Hammon’s victim from the woman in Davis, whose “frantic answers

were provided over the phone, in an environment that was not

tranquil.” Id. at 827, 830. Koslowski followed Davis in noting

that “a certain level of formality occurs whenever police engage

in a question-answer sequence with a witness,” even where the

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victim’s emotional state was agitated. Koslowski, 166 Wash. 2d

at 429.

Beaumont’s statements to officers were “coherent and calm”.

They were made in response to the officers’ inquiries, similar to

Hammon. They were structured in a question-answer sequence, much

like a formal interrogation at a police station. They were

distinct from the unprompted, frantic answers in Davis. While

the Acadia Supreme Court relied on the fact that the questions

were made on the street without follow-up questioning, Davis

found that the fact that statements were given at an alleged

crime scene was not sufficient to render them testimonial. Davis

at 832, (R. at 39). In addition, Beaumont was no longer at the

crime scene, he was six blocks away—much farther than the “in the

other room” distinction employed by Hammon, which was still a

sufficient distance to make the interrogation formal.

CONCLUSION

For the reasons set forth above, the petitioner, Frank

Booth, respectfully requests that the United States Supreme Court

reverse the decision of the Acadia Supreme Court and hold that

Beaumont’s statements were testimonial and inadmissible under the

Confrontation Clause of the Constitution and Davis v. Washington.

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Respectfully Submitted,

_____________________

Gina Giacopuzzi

Attorney for Petitioner

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