Opinion
A-13853 0359
02-28-2024
EMMANUEL ADAMS, Appellant, v. STATE OF ALASKA, Appellee.
Marjorie Mock, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED
Appeal from the Superior Court, Second Judicial District, No. 2KB-19-00414 CR, Kotzebue, Paul A. Roetman, Judge.
Marjorie Mock, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Emmanuel Adams was convicted, following a jury trial, of two counts of third-degree recidivist assault for recklessly causing physical injury to Stephanie Williams and Lila Gavin. Williams did not testify at trial, but the prosecutor introduced a videorecording that showed Adams punching Williams and Gavin, as well as Gavin's testimony about the incident. The prosecutor also introduced photographic evidence that when a police officer asked Williams where Adams had hit her, Williams gestured to the left side of her face.
AS 11.41.220(a)(5).
On appeal, Adams argues that Williams's gesture was a testimonial statement and that any evidence about the gesture was admitted in violation of his Sixth Amendment right to confront an adverse witness. We agree, but we conclude that the court's error in admitting evidence of this statement was harmless beyond a reasonable doubt.
A person's nonverbal conduct is a "statement" for purposes of the Alaska Rules of Evidence "if it is intended by the person as an assertion." The State does not dispute that Williams's statement was intended as an assertion and is a statement for purposes of the confrontation clause.
The confrontation clause prohibits the admission of a statement made by an unavailable declarant if the statement is testimonial and the defendant did not have a prior opportunity to cross-examine the declarant. A statement made to a police officer is testimonial when the primary purpose of the statement is to provide evidence for a criminal prosecution. A statement is nontestimonial when its purpose is to enable the police to respond to an ongoing emergency.
Crawford v. Washington, 541 U.S. 36, 68 (2004).
Davis v. Washington, 547 U.S. 813, 822 (2006).
We conclude that Williams's gesture in this case was testimonial. When the officer asked Williams where she was hit, the officer had already seen video footage of the incident, and he phrased his questions about the incident in the past tense, demonstrating his understanding that the incident was over. Furthermore, Adams was not in the room, and it appeared Williams was safe from any immediate danger. Nothing in the record indicates that Williams required medical attention at the time the statement was made, and the officer did not ask questions about how to locate Adams. Reasonable participants to this interview would have understood that the purpose of the questioning was not to respond to an ongoing emergency, but rather to develop evidence that could be relevant to a later prosecution. Williams's nonverbal statement was therefore testimonial, and because Adams did not have an opportunity to cross-examine Williams about her statement, admission of this evidence was a violation of Adams's Sixth Amendment right to confrontation.
See id. at 822, 827-32 (discussing facts that "objectively indicate" when testimonial statements are made and when nontestimonial statements are made).
We further conclude, however, that this error was harmless beyond a reasonable doubt. The jury saw the video recording which showed Adams punching Williams in the face with such force that it knocked her to the ground. The video recording also showed Williams on her hands and knees, trying to crawl behind Gavin, and when Williams stood back up, she could be seen holding her hand to the left side of her face. After this, the jury heard Gavin's testimony that Adams punched Williams for no reason and that Williams tried to hide under her. Given this evidence, Williams's gesture about where Adams hit her was of no additional value. Because there was no reasonable possibility that the admission of this evidence had any impact on the jury's verdict, we conclude that the State has met its burden of showing harmlessness beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 24 (1967); Gomez v. State, 516 P.3d 879, 888-89 (Alaska App. 2022).
The judgment of the superior court is AFFIRMED.