☢ test - Í

Test. Based on Davis (June 19, 2006), below . As Davis notes, the test is objective; Court here concludes that the view of both declarant and police is relevant, but gives greater weight to what a reasonable person in declarant’s position would have understood. Contrary to the lower court’s finding here, Davis did not define or set the outer limits of what constitutes an emergency; rather “whether an emergency exists and is ongoing is a highly context-driven inquiry.” Relevant considerations include whether the assault was personal to the victim at hand , or whether a threat to others (including the first responders and the public) may continue; the type of weapon employed ; the medical condition of the declarant “to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim's medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public.” Court also points out that the issue of whether there was an ongoing emergency is not the ultimate question; rather, that “is simply one factor … that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation. Another factor the Michigan Supreme Court did not sufficiently account for is the importance of informality in an encounter between a victim and police. Formality is not the sole touchstone of our primary purpose inquiry because, although formality suggests the absence of an emergency … informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent.” Another factor in determining primary purpose: “ the statements and actions of both the declarant and interrogators .” Notes that both victims and police are likely to have mixed motives, while “a severely injured victim may have no purpose at all in answering questions posed; the answers may be simply reflexive.” “The inquiry is still objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim – circumstances that prominently include the victim's physical state.” Application. “[W]e confront for the first time circumstances in which the ‘ongoing emergency’ discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large.” Not a domestic dispute as in Crawford and Davis , so threat not apparently limited to victim at hand. Also first decision involving a shooting . At time of statements, whereabouts of shooter, and potential threat to first responders and others, were both unknown, increasing objective appearance of ongoing emergency. “Bryant's argument that there was no ongoing emergency because ‘[n]o shots were being fired,’ [cit.], surely construes ongoing emergency too narrowly. An emergency does not last only for the time between when the assailant pulls the trigger and the bullet hits the victim.” Victim’s medical condition and questions about medical care also make it apparent that his primary purpose was to secure help. Finally, “the informality of the situation and the interrogation … is more similar, though not identical, to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford . … The informality suggests that the interrogators' primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements.” Scalia and Ginsberg dissent, would find on these facts that the emergency was apparently over, and the actions/questions of police primarily those in a criminal investigation, not an emergency response. Scalia criticizes the majority for creating “an expansive exception to the Confrontation Clause for violent crimes.” Note, no analysis of dying declaration exception – not addressed in state court, as trial occurred before Crawford decision. Accord, Milford v. State , 291 Ga. 347, 729 S.E.2d 352 (July 2, 2012); Johnson v. State , 294 Ga. 86, 750 S.E.2d 347 (October 21, 2013) (“the challenged statements were made by the victim of the [similar transaction] crime to a law enforcement officer minutes after the crime to meet an ongoing emergency; therefore, they were not testimonial.”). Brown v. State, 288 Ga. 404, 703 S.E.2d 624 (November 8, 2010). Defendant’s malice murder and related convictions affirmed; trial court erred, but harmless, in admitting victim’s statements in domestic violence petition as non-testimonial. “The victim's sworn statement did not report events as they were actually happening and therefore differs from a call to 911 for emergency assistance,” citing Davis v. Washington, 547 U.S. 813, 827 (126 S.Ct. 2266, 165 L.Ed.2d 224) (2006). “The victim's ‘narrative of past events was delivered at some remove in time from the danger she described’ and was not providing ‘information enabling officers immediately to end a threatening situation....’ Id., at 832.” Harmless, however, because “cumulative of other evidence, namely the testimony of eight officers that they had responded to several emergency calls for assistance concerning domestic violence at the home of appellant and the victim. [Cit.]” Boggs v. State, 304 Ga.App. 698, 697 S.E.2d 843 (June 30, 2010). Defendant’s robbery conviction affirmed; no violation of defendant’s right to confrontation when victim didn’t testify, but no out-of-court statements of victim were admitted, either. Sanford v. State, 287 Ga. 351, 695 S.E.2d 579 (May 17, 2010). Defendant’s convictions for malice murder and related offenses affirmed; victim’s statements to police properly admitted as dying declarations. 1. “[T]his Court previously has acknowledged with approval that the Supreme Court of the United States has expressly declined to extend its [ Crawford