Washington criminal defendants have a right to confront the witnesses against them pursuant to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. This means a defendant generally has the right to cross-examine witnesses who provide testimonial evidence against the defendant at trial. In cases involving charges related to domestic violence or violation of a no-contact order, victims may not want to testify. In a recent case, a defendant challenged his convictions after body camera footage and a 911 recording were presented at trial.
The mother of defendant’s children called 911 and asked for help, stating “He keeps following me!” There was also a male voice on the recording, saying “Give me the phone.” When police arrived, the children’s mother told them there was a no-contact order. She said the defendant had been pushed her, threatened to kill her, and stole her phone.
The police found the defendant a short distance away. He had a phone in his possession.
The state charged the defendant with interfering with the reporting of a crime of domestic violence, robbery in the second degree, and felony violation of a no-contact order. The defendant testified his children approached him while he was riding the bus. He said he and the children’s mother got into an argument and he got off the bus. He came back to the bus stop about 20 or 30 minutes later and they were there. He said the children’s mother asked to borrow his phone. He said he told her to give him the phone after he heard her say he was “offending her.” He testified she threw the phone down, and he picked it up and ran.
The children’s mother did not testify, but the court admitted her out-of-court statements through body-camera footage and the 911 recording.
The defendant was found guilty of interfering with the reporting of domestic violence and the felony no-contact order violation and not guilty of the robbery charge. The trial court issued no-contact orders for the children. The defendant appealed.
The defendant argued admission of the mother’s statements to police violated his constitutional right to confront his accuser. Pursuant to the Confrontation Clause, “testimonial” out-of-court statements may not generally be used at trial, except when the defendant has had the opportunity to confront the speaker and the speaker is not available to testify. However, statements that are made in the course of a police interrogation with a primary purpose of allowing the police to address an ongoing emergency are not considered “testimonial.”
The appeals court noted that the trial court excluded footage after the officers began checking the no-contact order and the mother’s medical condition. The trial court found that to be the point at which the inquiry stopped being nontestimonial.
The defendant argued there was no ongoing emergency when the statements were made.
The appeals court noted that the police did not know the defendant’s identity, the extent of the threat, whether he would return, or what would happen if they found him. The appeals court stated the questions were around identifying the person who assaulted the mother. The appeals court found those initial questions had the primary purpose of meeting the ongoing emergency and therefore their admission at trial did not violate the defendant’s right of confrontation.
The defendant also argued the trial court had not analyzed the need for no contact records or considered less restrictive alternatives on the record. A sentencing condition that interferes with a parent’s fundamental liberty interest in their children must be reasonably necessary to achieve a compelling state interest. The trial court had not applied the correct legal standard, and the state conceded to that fact. The appeals court therefore remanded the case for reconsideration of the no-contact orders’ terms.
This case shows that the state may obtain a convictions related to domestic violence and no-contact order violations even if the victim does not testify. The experienced Seattle civil protection order attorneys at Blair & Kim, PLLC, have a thorough understanding of all aspects of the law surrounding civil protection orders and no-contact orders, including family law and criminal defense. If you have a legal issue involving a civil protection order or no-contact order, call us at (206) 622-6562.