STATE OF MISSOURI,                                     )
                                                       )
           Plaintiff-Respondent,                       )
                                                       )
v.                                                     )        No. SD34346
                                                       )
RONELL M. COOPER,                                      )        Filed: Jan. 31, 2017
                                                       )
           Defendant-Appellant.                        )

                APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                                         Honorable Dan W. Imhof

REVERSED AND REMANDED

           Ronell M. Cooper (“Defendant”) was convicted after a bench trial of third-degree

domestic assault for causing physical injury to S.A ("Victim") “by grabbing and twisting

her wrist[.]” See section 565.074. 1 Victim did not testify at Defendant’s trial. In a single

point, Defendant asserts that the admission of Victim's out-of-court statements to police

1
    Section 565.074 provides, in pertinent part:

1. A person commits the crime of domestic assault in the third degree if the act involves a family or
   household member, including any child who is a member of the family or household, as defined in
   section 455.010 and:

       (1) The person attempts to cause or recklessly causes physical injury to such family or household
           member[.]

Unless otherwise noted, all statutory references are to RSMo Cum. Supp. 2012.


                                                       1
violated his constitutional right to confront the witnesses against him. 2 Finding merit in

this claim, we reverse and remand.

                       Applicable Principles of Review and Governing Law

           As relevant here, the Confrontation Clause of the Sixth Amendment to the United

States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him[.]” U.S. Const. amend. VI.

Missouri’s constitution provides the same right. Mo. Const. art. 1, sect. 18(a); State v.

Schaal, 806 S.W.2d 659, 662 (Mo. banc 1991).

           Whether a defendant’s confrontation rights were violated is a question of law that

we review de novo. State v. March, 216 S.W.3d 663, 664-65 (Mo. banc 2007).

“Properly preserved confrontation clause violations are presumed prejudicial[,]” State v.

Justus, 205 S.W.3d 872, 881 (Mo. banc 2006), and any resulting conviction may only be

upheld if the violation was harmless beyond a reasonable doubt, “meaning that there is no

reasonable doubt that the error . . . failed to contribute to the [trial court]’s verdict.”

March, 216 S.W.3d at 667 (citing Chapman v. California, 386 U.S. 18, 24 (1967)).




2
    The State did not file a brief. The following observation is equally applicable in this case:

                     The prosecuting attorney, who represents the state in misdemeanor appeals [see
           section 56.060.1], has not filed a respondent’s brief, although the allotted time for him to
           do so is long past. It would seem that if the state was serious enough about this case to
           prosecute it, it would be serious enough to try and justify the conviction, instead of
           leaving to us the task of analyzing defendant’s arguments without the benefit of the
           state’s point of view. Although there is no penalty prescribed for failure of the
           respondent state to file a brief after appeal of a conviction in a criminal case, we cannot
           understand why a prosecutor would neglect his statutory duty to see that the state was
           adequately represented through the entire criminal proceeding.

State v. Harrington, 679 S.W.2d 906, 907 (Mo. App. S.D. 1984).


                                                         2
                                      The Evidence

       The State’s misdemeanor information alleged that on or about September 25,

2014, Defendant “recklessly caused physical injury to [Victim] by grabbing and twisting

her wrist, and [Victim] and [D]efendant were family or household members in that

[Victim] and [D]efendant were adults who were related by blood.” The only witnesses at

Defendant’s trial were Springfield Police Department officers Eric Rogers (“Officer

Rogers”), Patrick Lightwine (“Officer Lightwine”), and Alberto Estrada (“Corporal

Estrada”). Of these witnesses, only Officer Rogers testified about what Victim told the

police, and his testimony was as follows.

       Sometime after 10:00 p.m. on September 25, 2014, Officer Rogers was

dispatched to a residential address to investigate an assault call. Upon being admitted to

the residence, he spoke with Victim. Victim was crying, she was holding her right arm

against her body, and she had a swollen lip. Officer Rogers said he asked Victim about

“what had happened” to her. When the prosecutor asked him what Victim said, defense

counsel objected that any responses would constitute hearsay and would violate

Defendant’s “right to confrontation under the Sixth Amendment of the United States

Constitution, and . . . Article I, Section 18(a) of the Missouri Constitution.” The

prosecutor responded that the testimony was admissible under the “excited utterance”

exception to the hearsay rule and that it would not implicate the Confrontation Clause

because Victim’s statements were not testimonial. After some discussion, the trial court

ultimately overruled defense counsel’s objection and then allowed defense counsel to

have a continuing objection “to all the statements [of Victim]”




                                             3
       Officer Rogers then proceeded to testify that, according to Victim, Defendant had

forced open her front door and said he was there “to get [his] stuff.” Victim tried to stop

him, but Defendant pushed past her and ran toward a bedroom where he then began to

throw the contents of a closet onto the floor. The prosecutor asked Officer Rogers about

whether Victim had explained how her arm had been injured. Officer Rogers replied:

               Yes. I -- after -- I’d have to refer to my report to the exact -- but it
       was -- after he had pushed her initially into the hallway -- or to the
       doorway that led to the hallway from the bedroom, and -- she was able to
       get up. She had a -- she called it a dolphin lamp -- I assumed it was a
       lamp that -- that looked like a dolphin -- in her hand, and she also had a
       hammer in her hand. Went back to her -- or went back to him and at that
       point was again telling him to stop going through the stuff. He turned
       around, grabbed her by the right arm, twisted it, and -- and then flung her
       up against the -- onto the bed. And then once onto the bed -- and that’s
       when she’s claiming that her shoulder and her wrist was hurt, whenever he
       grabbed her right arm and twisted it and flung her onto the bed. That’s
       when she told me that that’s what caused the injury to her shoulder and her
       right wrist.

On cross-examination, Officer Rogers testified as follows:

       Q. You put all the information she told you into a report; right?

       A. Right.

       Q. Why were you asking her about -- you were asking her these things so
          that you could document it in your report; correct?

       A. Correct.

       Q. And you do the report so that they could be used in court later on, in
          circumstances just like today; right?

       A. Correct.

       Officer Lightwine had been dispatched to Victim’s residence around the same

time as Officer Rogers. When the officers arrived, Defendant was standing outside the

front of the residence. Defendant was eventually arrested, and Corporal Estrada later




                                              4
spoke with him at the Greene County jail after Defendant was advised of his Miranda

rights. 3 Defendant claimed that he had entered Victim’s residence after being invited

inside. He claimed that an argument ensued, and Victim pushed him against a kitchen

sink, threw a pot of hot water at him, and chased him with a hammer. In his statement to

Officer Lightwine, Defendant claimed that he “restrained” Victim, but Defendant

otherwise “didn’t really go into great detail . . . about it.” According to Corporal Estrada,

“there was a -- kind of a struggle over the hammer, and apparently -- he claims that she

might have been hit in the mouth with the hammer.” Both Officer Lightwine and

Corporal Estrada saw scratch marks on one or both of Defendant’s arms, but neither

observed any burn marks.

           Corporal Estrada testified that he spoke with Victim the day after the date of the

charged crime. At that time, her arm was in a “Velcro-type cast,” and she had a

“laceration or a swollen lip.” The trial court sustained defense counsel’s objections to

any testimony from Corporal Estrada regarding: (1) statements Victim had made to

Corporal Estrada; and (2) Victim’s medical records.

           Additional background necessary to the disposition of Defendant’s point is

included below as we address his point on appeal.

                                                   Analysis

           Defendant claims the trial court erred in overruling defense counsel’s objection to

Officer Rogers’ testimony “that he was told by [Victim] that her injuries were caused by

[Defendant]’s twisting her arm and flinging her on the bed” because this “testimonial

hearsay” violated his right to confrontation. We agree.



3
    See Miranda v. Arizona, 384 U.S. 436 (1966).


                                                      5
         The Supreme Court of the United States has held that the Confrontation Clause

prohibits “admission of testimonial statements of a witness who did not appear at trial

unless [the witness] was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54

(2004). “It is the testimonial character of the statement that separates it from other

hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject

to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006); see also

March, 216 S.W.3d at 665 (noting that Crawford “divorced the hearsay exceptions from

the Confrontation Clause analysis”).

         “The Confrontation Clause analysis thus centers on whether the particular

evidence at issue is ‘testimonial’ in nature.” Glass v. State, 227 S.W.3d 463, 472 (Mo.

banc 2007). 4 In dealing with statements made during a police interrogation, the Supreme

Court has provided the following guidance:

         Statements 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.

Davis, 547 U.S. at 822; see also State v. Kemp, 212 S.W.3d 135, 148 (Mo. banc 2007)

(“Davis provides a functional analysis for determining whether an out-of-court statement

is testimonial and, thus, subject to the Confrontation Clause restrictions of Crawford”).

         Applying such an objective view here causes us to conclude that the primary

purpose of Officer Rogers’s interrogation of Victim was not to assist in an ongoing


4
  For this reason, the “excited utterance” exception to the hearsay rule is not relevant to the resolution of
this appeal.


                                                       6
emergency (at that point, Defendant (the only suspect) had been identified at the scene,

questioned by Officer Lightwine, and arrested) but, instead, to investigate a possible

crime. Further, Officer Rogers expressly admitted that he asked Victim about “what had

happened” (emphasis added) for the purpose of gathering information to be used in a

criminal prosecution. Cf. Davis, 547 U.S. at 830 (noting that the investigating officer in

Hammon v. Indiana (the companion case to Davis) “was not seeking to determine . . .

‘what is happening,’ but rather ‘what happened’”). As a result, we find that Victim’s out-

of-court statements were “testimonial” as defined in Davis.

           The record does not indicate (and we have nothing from the State claiming) that

Victim was unavailable to testify and that Defendant had a prior opportunity to cross-

examine her. We therefore find that the admission of Victim’s testimonial, out-of-court

statements violated Defendant’s rights under the Confrontation Clause. See Crawford,

541 U.S. at 53-54. Such a violation requires reversal unless the State demonstrates that

the admission of Victim’s testimonial statements was harmless beyond a reasonable

doubt. 5 See March, 216 S.W.3d at 667.

           Here, the trial court had to find that Defendant caused injury to Victim “by

grabbing and twisting her wrist” in order to find him guilty of third-degree domestic

assault as charged. In explaining its ruling, the trial court stated:

                   It is a little problematic knowing at what point I should stop using
           her statements, but I think I -- I don’t have a bit of a problem with her --
           with considering it an excited utterance for her to have said that -- that her
           arm was hurt and that he did that. Even if I’m going too far by saying he
           did that, he says he did it.

There are two problems with the trial court’s rationale. First, as earlier noted, whether

the referenced statement by Victim would qualify as an “excited utterance” exception to

5
    By failing to file a brief, the State has presented us with no such argument.


                                                         7
the hearsay rule is not relevant to an alleged violation of the Confrontation Clause.

Second, neither Officer Lightwine nor Corporal Estrada testified that Defendant said he

“did it.” Rather, they testified that, in Defendant’s words, he had “restrained” Victim and

that there had been “a struggle over the hammer[.]”

       The only evidence that Defendant himself caused the injury to Victim’s arm by

grabbing and twisting her wrist was Victim’s statement to that effect in response to

Officer Rogers’s question about what had happened. The erroneous admission of this

statement that the trial court then relied on in finding Defendant guilty of the charged

crime was not harmless beyond a reasonable doubt. Cf. March, 216 S.W.3d at 667

(holding that the admission of a laboratory report in violation of the Confrontation Clause

was not harmless because it was the only evidence offered to prove an element of the

charged crime).

       Defendant’s point is granted. The judgment is reversed, and the case is remanded.


DON E. BURRELL, J. – OPINION AUTHOR

JEFFREY W. BATES, P.J. – CONCURS

MARY W. SHEFFIELD, C.J. – CONCURS




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