Domestic Violence News

Summary of WV Supreme Court of Appeals Decision in State of WV v. Mechling,¹ with a Brief Review of U.S. Supreme Court Decisions in Crawford, Davis, & Hammon

10/2/06

by William D. Turner

Pyles Haviland Turner & Smith, LLP

206 W. Randolph St.

Lewisburg, WV 24901

wturner@phtslaw.com

(304) 645-6400

The Sixth Amendment to the U.S. Constitution provides: "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."

Problem / Issue: In many DV prosecutions, the victim does not appear and testify at the defendants trial. This was true in Davis, Hammon, and Mechling.

Facts of State v. Mechling: Defendant was convicted of misdemeanor domestic battery following bench trials in both Magistrate and Circuit Court of Monongalia County.

-The victim, Ms. Thorn, was Defendants girlfriend. She did not appear and testify at either of the two bench trials. The prosecution did not have any witness(es) who could say they had seen the defendant strike the victim. Thus, the State proved its case by calling 3 witnesses who had heard the victim say Defendant struck her.

- The States first witness, Mr. Alvarez, was allowed to testify that the victim told him Mechling "hit me in the head."²

- The police were called and two Deputies arrived "within 15 minutes." They found the victim crying and "really shook up." The Deputies were allowed to testify that the victim told them she had been hit in the head twice.³

Courts Analysis in State v. Mechling: The WV Supreme Court of Appeals began by noting the U.S. Supreme Courts decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that the Confrontation Clause bars the admission of testimonial statements by a witness who does not appear at trial, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine witness. The WV Supreme Court also noted the U.S. Supreme Courts recent opinion⁴ in the consolidated cases of Davis v. Washington, and Hammon v. Indiana.

In Davis, the statements in issue had been made by the victim during the early stages of a 911 call; she reported she was being beaten and the identified Davis as the man doing it. The U.S. Supreme Court ruled the statements non-testimonial and therefore admissible.

In Hammon, the testimony in issue consisted of statements by a police officer recounting his conversation with the victim made after the officer (with a partner officer) arrived at the crime scene and the "initial emergency" had passed. The victim made the statements after she and her husband had been separated by the two officers and she was asked for the second time what had happened. The U.S. Supreme Court ruled the statements testimonial and therefore not admissible.

The WV Supreme Court noted that the Davis Court held that witness statements made to police officers regarding "what happened" (i.e., information regarding a past crime) are testimonial statements barred by Confrontational Clause (unless the victim testifies and is subject to cross examination). The WV Supreme Court also noted the Davis Court had held that witness statements made to a police under circumstances indicating objectively that the primary purpose is to help police meet an ongoing emergency are non-testimonial and therefore admissible. According to the WV Supreme Court, the decision whether a statement made out of context is testimonial depends more on the witness statements than the interrogation or officers questions.

1. A statement made is testimonial if made under circumstances where an objective witness reasonably would believe the statement would be available for use at a later trial.

2(a). A witness statement to a police officer is testimonial if the circumstances objectively indicate there is no ongoing emergency and the primary purpose is to prove past events relevant to a later criminal prosecution.

2(b). A witness statements to a police officer are non-testimonial if the circumstances objectively indicate the primary purpose is to help police officers meet an "ongoing emergency."

3. A court assessing whether a statement is testimonial should focus more on the witness statement and less on the interrogation or officers questions.⁵

        WV Supreme Courts Application of Law to the Facts in State v. Mechling:

(a) Victims statements to Mr. Alvarez - The WV Supreme Court passed the buck back to the Circuit Court on remand, saying it could not decide on the record it had available whether the statements had been made in the course of an "ongoing emergency."

(b) Deputies testimony recounting victims statements - The WV Supreme Court held these statements were testimonial and therefore barred by the Confrontation Clause.

WV Supreme Courts discussion of DV 101: The WV Supreme Court discussed DV 101 at great length in Mechling, and noted that DV prosecutions are typified by (1) low victim cooperation with the prosecutor, and (2) high same-victim recidivism. The Court also noted that the victims highest risk comes at the time of separation from the perpetrator. This discussion should prove helpful to cite in any further cases before the Court with DV issues.

WV Supreme Courts Embrace of Forfeiture Doctrine: Relying on the U.S. Supreme Courts discussion of the forfeiture doctrine in Davis & Hammon, the WV Supreme Court noted that accused defendants have no duty to help the State prove their guilt, but they certainly have a duty to refrain from destroying integrity of the Criminal Justice system by coercing and/or intimidating Domestic Violence victims into not testifying. The Court listed as examples of conduct that might justify a trial court in finding forfeiture of his/her Confrontation Clause rights by a defendant:

- Direct witness intimidation

- Further abuse by perpetrator

- Subtle gesture or new method of abuse by perpetrator

The WV and U.S. Supreme Courts have noted that the Forfeiture Doctrine is an equitable rule. Trial courts evaluating whether forfeiture has occurred may be able to decide it using a mere preponderance of the evidence standard. Also, the courts have suggested hearsay evidence (including statements otherwise barred by the Confrontation Clause) can be considered in the forfeiture hearing.

        Open questions regarding the Forfeiture Doctrine:

- Whether a history of severe abuse, standing alone, is sufficient proof.

- Whether circumstantial evidence is sufficient to prove forfeiture.

- Whether perpetrator conduct not "wrongful" on its face, i.e. sending flowers or a romantic card, is sufficient to prove forfeiture.

- Whether conduct pre-dating the arrest can be used to prove forfeiture, e.g., threat that "Ill kill you if you call the police."

- Call 911 while the DV is still in progress and tell them its an emergency. Describe what is happening and tell 911 if any weapon(s) are involved or present on the premises. Emphasize any violence that is happening.

- As soon as the officers arrive, tell them what is happening and who the perpetrator is.

                        - What is an "emergency"? When does it begin and end?

                        - Is crime "ongoing" or has it ended?

                        - What is the scope of the Forfeiture Doctrine? Will it be construed broadly in DV cases?