                              SUPERIOR COURT
                                   of the
                            STATE OF DELAWARE
Jeffrey J Clark                                                  Kent County Courthouse
  Judge                                                               38 The Green
                                                                     Dover, DE 19901
                                                                Telephone (302)735-2111

                                    August 18, 2020



Kevin B. Smith, DAG                                John R. Garey, Esq.
Department of Justice                              Law Office of John R. Garey
102 West Water Street                              48 The Green
Dover, DE 19901                                    Dover, DE 19901


                  RE: State v. Christopher Tunnell
                      ID No. 1910005939

                                Submitted: July 29, 2020
                                Decided: August 18, 2020

Counsel:

       This letter provides the Court’s reasoning and decision regarding the State of
Delaware’s motion to admit evidence in limine. It seeks to admit a 911 recording
and an accompanying call for service detail report (hereinafter the “log”) to prove
circumstances surrounding an alleged rape and assault.1 For the reasons discussed
below, the 911 recording will be admissible at trial. The log will also be admissible,
with the exception of several conclusory statements that must be redacted.



1
  The State originally sought permission from the Court, in the alternative, to conduct a trial
deposition pursuant to Criminal Rule 15. The State has withdrawn that request.
                                     The Facts
      The facts recited are those found by the Court to a preponderance of the
evidence as required by Delaware Rule of Evidence (“D.R.E.”) 104. The record
presented by the parties, and agreed to be complete for this purpose, includes the
911 audio recording, a written transcript reflecting that recording, a map of the area
discussed in the recording, and the log.
      On April 6, 2019, at approximately 3:20 p.m., Kent County’s public safety
answering point (“KENTCOM”) received a 911 call. The caller, M.S., made the call
while walking in a parking lot located in the Little Creek Wildlife Area. She reported
finding a woman lying unresponsive in the grass next to the parking lot. She also
reported that the woman had her underwear and pants around her ankles.
       M.S. limited her statements on the 911 recording to descriptions of the
woman’s location and condition. Namely, she described where to find the wildlife
area and how to find the parking lot located within the area. M.S. first described the
woman as unresponsive. Later, she stated that the woman appeared intoxicated.
Likewise, the dispatcher’s questions focused on the incident’s location and the
woman’s injuries. None of the dispatcher’s questions addressed the nature of any
criminal activity.
      M.S. remained with the woman until medical and law enforcement personnel
arrived. At that time, the woman appeared intoxicated and incoherent. She had
facial injuries and blood on her face. She told the responders that someone raped
her, but had no memory of the sexual assault.
      After further investigation, the police arrested Defendant Christopher Tunnell
for the alleged attack. They charged him with Rape in the First Degree and Assault
in the Third Degree. Implicit in the State’s motion is that it does not intend to call
M.S. as a witness at trial.


                                           2
                                 The Parties’ Arguments
       The State offers the 911 recording and log to prove the circumstances
surrounding the alleged rape and assault. At the outset, it argued that the recording
and log are relevant, and that they are self-authenticating pursuant to D.R.E. 902
(11). 2 It also contended that both satisfy the first level of hearsay analysis because
they qualify as business records pursuant to D.R.E. 803(6).3
       At the outset, Mr. Tunnell did not challenge that the recording and log qualify
as business records. Originally, he contested whether the State met its obligation to
authenticate that evidence pursuant to D.R.E. 902(11).                At oral argument, he
withdrew that objection. When doing so, he conceded that the State satisfied the
requirements for self-authentication under that rule.
       With regard to the matters still in contention, the State first concedes that most
of M.S.’s out of court statements are hearsay. It argues, however, that they are
admissible as present sense impressions.4 Furthermore, the State contends that the
dispatcher’s statements are non-hearsay because it offers them into evidence for a
reason other than the truth of the matter asserted. Finally, the State contends that the
statements are non-testimonial. Given that status, the Confrontation Clause in the
Sixth Amendment to the United States Constitution would not bar them.
       In response, Mr. Tunnell argues that M.S.’s out of court statements heard in
the recording and reflected in the log are not present sense impressions. He focuses
not on the length of time between the observations and the statements, but on the

2
  See D.R.E. 902(11) (providing the rule for self-authentication for “Certified Domestic Records
of a Regularly Conducted Activity.”).
3
  See D.R.E. 803(6) (providing for the hearsay exception for “Records of a Regularly Conducted
Activity”).
4
  See D.R.E. 803(1) (providing that a present sense impression, or “[a] statement describing or
explaining an event or condition, made while or immediately after the declarant perceived it,” is
“not excluded by the rule against hearsay, regardless of whether the declarant is available as a
witness”).
                                               3
length of time between the 911 call and the alleged criminal conduct. He also argues
that based on the centrality of the testimony, justice requires that he be given the
ability to confront M.S. at trial regarding her observations. In this vein, he argues
that the statements were testimonial in nature and to admit them would violate his
confrontation rights.

The out of court statements made by M.S. in the 911 recording and log qualify
as present sense impressions; the dispatchers’ statements in the 911 recording
            are non-hearsay that are offered for a relevant purpose.

       M.S.’s statements in the 911 recording and log qualify as present sense
impressions.     This hearsay exception applies if: (1) the declarant personally
perceived the events described; (2) the declaration was an explanation or description
of the events, rather than a narration; and (3) the declaration and event described
were contemporaneous.5 The statements need “not be precisely contemporaneous
with the triggering event but must be in response to it and occur within a short time
after the stimulus.”6
       Here, the entire exchange between M.S. and the dispatcher consisted of
questions and answers in real time and in response to M.S.’s instantaneous
impressions. Namely, M.S. called 911 immediately after she found the alleged
victim.7 Her statements included her descriptions of the woman’s then-existing
condition and the area where she found her. She also told the dispatcher how to find


5
  Abner v. State, 757 A.2d 1277, 2000 WL 990973, at *1 (Del. 2000) (TABLE).
6
  Dixon v. State, 996 A.2d 1271, 1276 n.5 (Del. 2010) (citing Warren v. State, 774 A.2d 246, 253
(Del. 2001) to explain that “[c]ourts generally find statements admissible as a present sense
exception to the hearsay rule, under D.R.E. 803(1), if the statements are made either immediately
or within about ten or twenty minutes of the event.”).
7
  See 2 McCormick on Evid. § 271 (8th ed.) (explaining that the “growing use of electronic
communication devices, such as cell phones and text messaging expands the number of occasions
when contemporaneous statements of observations are narrated to others, [so] the [present sense
impression] exception may see more frequent application”).
                                               4
the parking area. Lastly, she contemporaneously described changes in the alleged
victim’s condition such as when she awoke and how she responded to her presence.
Accordingly, M.S.’s statements included only her contemporaneous description of
events that she perceived. They qualify as present sense impressions.
          Furthermore, when fixing the record for this motion in limine, these
circumstances illustrate how statements, by themselves, may intrinsically
demonstrate that they qualify as present sense impressions.8              McCormick on
Evidence provides a helpful observation regarding how cell call recordings can
demonstrate this without the need for additional evidence:
          [t]he explosive expansion of electronic communication devises in
          modern life, such as cell phones . . . facilitate a flow of almost
          instantaneous communications and frequently create a record of it[.
          This] is likely to result in the availability of many more statements that
          qualify under this exception in terms of their spontaneity as potential
          evidence in litigated cases.9
M.S.’s recorded call that describes what she saw, as she saw it, fits firmly within this
hearsay exception.
          Apart from M.S.’s out of court statements, the dispatcher asked a series of
questions in the 911 recording.        The State offers them for context as opposed to
offering them for the truth of the matter asserted. As such, those questions are non-
hearsay and are admissible unless there is another reason to bar their admission. Mr.
Tunnell raises no further objection to their admissibility. Accordingly, the questions
are admissible for that purpose. To the limited extent they are not relevant for
context, the dispatcher’s statements identify what emergency responders were in
route and when to expect them. Those statements are also non-hearsay because the




8
    Id.
9
    Id.
                                              5
State offers them to explain M.S.’s decision to remain on site, as opposed to offering
them for the truth of the matter asserted.
       Finally, M.S.’s same out of court statements are contained in the recording
and the log. At oral argument, Mr. Tunnell conceded that if the 911 recording is
admissible, the same statements in the log are also admissible. Accordingly, without
further objection, both levels of hearsay analysis relevant to the log are satisfied: (1)
the log is a business record; and (2) the statements contained in the log qualify as
present sense impressions for the same reasons discussed above.
       Finally, there are limited conclusory statements by dispatch and law
enforcement personnel in the log. Unlike the other statements, they reference the
existence or nature of a crime. The State correctly concedes that those statements
are not admissible. The parties must confer prior to trial to ensure such statements
are redacted from the log before the State may offer it into evidence.

     The statements are non-testimonial; they are not barred by the Sixth
                    Amendment’s Confrontation Clause.

       In the alternative, Mr. Tunnell argues that admitting the recording and log
would violate his Sixth Amendment right to confront witnesses. As explained by
the Delaware Supreme Court in Dixon v. State,10 hearsay related analysis does not
end after a well-recognized hearsay exception applies. The Court must also confirm
that admitting the out of court statements does not violate the Sixth Amendment’s
Confrontation Clause.11
       The Sixth Amendment to the United States Constitution applies to the states
through the Fourteenth Amendment.12 It contains the Confrontation Clause, which

10
   996 A.2d 1271 (Del. 2010).
11
   Id. at 1277.
12
   Milligan v. State, 116 A.3d 1232, 1236 (Del. 2015) (citing Melendez–Diaz v. Massachusetts,
557 U.S. 305, 309 (2009)).
                                             6
provides that an accused has the right “to be confronted with the witnesses against
him.”13 The Confrontation Clause bars the “admission of testimonial statements of
a witness who did not appear at trial unless he [or she] was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination.”14
       The test regarding the confrontation portion of the bar against hearsay is a
binary one. On one hand, the right applies to testimonial statements.15 On the other
hand, non-testimonial statements are not subject to the Confrontation Clause and are
admissible as long as they meet the requirements of a hearsay exception.16
       In Dixon v. State, the Delaware Supreme Court explained the differences
between testimonial and non-testimonial statements. In fact, it did so in the context
of a 911 call. In finding statements made to a dispatcher to be non-testimonial, it
first explained the need to determine the purpose behind the questioning. In this
regard, the Court described testimonial statements as those responding to
interrogations by law enforcement personnel where the interrogator intends (1) to
learn facts that demonstrate there was a crime or (2) to learn a perpetrator’s
identity.17 In contrast, the Court explained that non-testimonial statements often
come in response to questions on a 911 call. Such exchanges frequently facilitate
law enforcement’s assistance.18




13
   U.S. Const. amend. VI.
14
   Dixon, 996 A.2d at 1277 (quoting Crawford v. Washington, 541 U.S. 36, 53–54 (2004)).
15
   Id. at 1278 (citing Davis v. Washington, 547 U.S. 813, 814 (2006)).
16
   Id. (citing Davis, 547 U.S. at 821).
17
   Id. (citing Davis, 547 U.S. at 826).
18
   Id. (citing Davis, 547 U.S. at 827). See also Davis, 547 U.S. at 822 (explaining that “[s]tatements
are nontestimonial when made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate
that there is no such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution”).
                                                  7
       In its decision in Dixon, the Delaware Supreme Court identified four objective
circumstances in a 911 call that tend to make statements non-testimonial.19 First,
statements tend to be non-testimonial if a 911 caller addresses an event that is
happening at the time of the call.20 Second, they tend to be non-testimonial if the
911 caller is asking for help.21 Third, if the 911 caller is in an unsafe setting, the
statements are more likely non-testimonial.22    Fourth, statements tend to be non-
testimonial if the exchange between the dispatcher and 911 caller is necessary to
resolve the present emergency.23 These circumstances exist in many 911 calls.
When they do, the 911 caller’s statements in response to dispatcher questions are
non-testimonial.24
       Comparing the circumstances in this case to the four objective circumstances
outlined in Dixon demonstrates that admitting this evidence, absent M.S.’s testimony
at trial, will not violate Mr. Tunnell’s confrontation rights.   First, the event that
M.S. called to report—her finding of an unresponsive, partially nude woman alone
in a wildlife area — occurred at the time of the call. Second, M.S. sought emergency
medical and law enforcement help for the woman. Third, M.S. called from a
potentially unsafe setting. In this regard, any danger that caused the woman’s
condition could have still then existed. Fourth, the conversation between M.S. and
the dispatcher focused on how to help the injured woman.           M.S. directed the
emergency resources to where she found the alleged victim, while describing the
woman’s condition at the time she found her. The dispatcher asked additional
questions to help best direct police and ambulance to the scene. None of M.S.’s


19
   Dixon, 996 A.2d at 1278–79.
20
   Id. at 1278.
21
   Id.
22
   Id. at 1279.
23
   Id. at 1278–79.
24
   Id. at 1278–79.
                                          8
proffered statements address what crime could have caused the woman’s condition.
Nor were the dispatcher’s questions focused on such information. Rather, M.S.
merely responded to questions designed to provide emergency aid.
      On balance, the objective facts on this D.R.E. 104 record, demonstrate that
the primary purpose of the dispatcher’s questions was not to prove past events for
the purpose of future criminal prosecution. Accordingly, M.S.’s statements were
non-testimonial. Admitting them without her presence at trial for purposes of cross-
examination will not violate Mr. Tunnell’s confrontation rights.


                                    Conclusion
      For the reasons discussed, the State’s motion in limine to admit the 911 call
recording and log is GRANTED.           Any conclusory statements made by the
dispatcher in the log, however, must be redacted before the log is admitted into
evidence. Finally, the Court will consider an appropriate limiting instruction if Mr.
Tunnell proposes one.
      IT IS SO ORDERED.

                                                          /s/ Jeffrey J Clark
                                                                 Judge




                                         9
