MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	43	
Docket:	   And-18-181	                                                                   	
Argued:	   December	11,	2018	
Decided:	  March	26,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                  DWAIN	A.	SYKES	
	
	
HJELM,	J.	

      [¶1]		In	this	case,	we	again	consider	the	admissibility	of	statements	made	

by	 the	 alleged	 victim	 of	 a	 domestic	 violence	 assault	 during	 a	 9-1-1	 call	 for	

emergency	assistance,	when	the	victim	does	not	testify	at	trial.	

      [¶2]		Dwain	A.	Sykes	appeals	from	a	judgment	of	conviction	entered	in	

the	Unified	Criminal	Docket	(Androscoggin	County,	Mills,	J.)	after	a	jury	found	

him	 guilty	 of	 domestic	 violence	 assault	 (Class	 D),	 17-A	 M.R.S.	 §	 207-A(1)(A)	

(2018).		During	the	trial,	the	court	admitted	in	evidence	a	recording	of	a	9-1-1	

call	after	concluding,	first,	that	the	victim’s	recorded	statements	fell	within	the	

excited	 utterance	 exception	 to	 the	 hearsay	 rule,	 and,	 second,	 that	 the	

statements	 were	 nontestimonial	 and	 thus	 not	 subject	 to	 exclusion	 by	 the	
2	

Confrontation	Clause.1		Sykes	asserts	that	the	court	erred	in	both	respects.		We	

affirm	the	judgment.		

                                          I.		BACKGROUND	

         [¶3]		The	following	facts	are	drawn	from	the	evidence	presented	at	the	

pretrial	hearing	on	the	admissibility	of	the	evidence	at	issue	here,	and	at	trial,	

with	both	records	being	viewed	in	the	light	most	favorable	to	the	State,	see	State	

v.	Metzger,	2010	ME	67,	¶	2,	999	A.2d	947,	and	from	the	procedural	record,	see	

In	re	Child	of	Nicholas	G.,	2019	ME	13,	¶	2,	---	A.3d	---.	

	        [¶4]	 	 At	 the	 time	 of	 the	 assault,	 Sykes	 and	 the	 victim	 had	 been	 in	 a	

relationship	for	a	number	of	years	and	 shared	a	home	where	they	lived	with	

their	children.		On	the	morning	of	October	22,	2017,	Sykes	and	the	victim	got	

into	 an	 argument	 in	 their	 residence,	 which	 was	 a	 mobile	 home.	 	 During	 the	

argument,	 Sykes	 twice	 hit	 the	 victim	 in	 her	 face	 with	 a	 closed	 fist.	 	 At	

approximately	 9:30	 a.m.,	 the	 victim	 called	 9-1-1	 to	 report	 the	 assault	 and	


     1		The	issue	of	the	admissibility	of	the	9-1-1	recording	was	presented	to	the	court	in	a	motion	in	

limine	filed	by	the	State	on	the	day	the	trial	was	scheduled	to	begin.		Sykes	challenges	the	trial	court’s	
consideration	of	the	State’s	motion	because	it	was	not	timely	filed.		See	M.R.U.	Crim.	P.	12(c)	(stating	
that	a	party	“may	make	a	pretrial	motion	requesting	a	pretrial	ruling	on	the	admissibility	of	evidence	
.	.	.	no	later	than	7	days	before	the	date	set	for	jury	selection”).		Although,	by	rule,	the	State’s	motion	
should	have	been	filed	in	advance	of	trial	in	order	to	“avoid	anticipated	disruption	of	the	trial,”	Field	
&	Murray,	Maine	Evidence	§	103.7	at	26	(6th	ed.	2007),	Rule	12(c)	is	permissive.		A	late	filing	of	the	
motion	does	not	foreclose	the	court	from	holding	a	hearing	if,	in	exercising	its	discretion	attendant	
to	 sound	 case	 management,	 the	 court	 determines	 that	 doing	 so	 is	 the	 least	 disruptive	 way	 of	
addressing	the	evidentiary	issue.		Here,	the	court	did	not	err	by	holding	the	hearing,	notwithstanding	
the	lateness	of	the	motion.	
                                                                                           3	

request	police	assistance.		During	the	call,	which	lasted	fourteen	minutes,	the	

victim	 sounded	 distressed	 and	 sometimes	 angry	 but	 was	 not	 audibly	 crying.		

Largely	in	response	to	the	9-1-1	dispatcher’s	questions,	the	 victim	 described	

the	assault,	which	she	said	had	occurred	that	morning.		Most	of	the	dialogue,	

however,	concerned	what	was	then	happening	in	the	residence.		Answering	the	

dispatcher’s	 questions,	 the	 victim	 told	 the	 dispatcher	 that	 Sykes	 was	 in	 an	

adjacent	 room	 in	 the	 home	 with	 three	 children	 and	 was	 aware	 that	 she	 had	

called	9-1-1.		The	victim	also	answered	the	dispatcher’s	questions	about	Sykes	

and	what	he	was	doing,	about	the	house,	and	about	potential	safety	concerns	

for	both	the	victim	and	the	officers	who	were	en	route	to	the	scene.			

       [¶5]	 	 The	 dispatcher	 told	 the	 victim	 several	 times	 that	 officers	 were	

travelling	to	the	scene	but	that	she	would	keep	the	victim	on	the	line	until	they	

arrived.		Approximately	ten	minutes	into	the	call,	the	dispatcher	told	the	victim	

to	 instruct	 Sykes	 to	 go	 outside	 and	 wait	 for	 the	 officer.	 	 When	 the	 victim	

conveyed	that	information	to	Sykes,	a	loud	and	angry-sounding	male	voice	is	

heard.		Over	the	next	several	minutes,	the	dispatcher	asked	the	victim	a	number	

of	 times	 whether	 Sykes	 was	 still	 in	 the	 residence,	 and	 each	 time	 the	 victim	

reported	 that	 he	 was.	 	 Finally,	 near	 the	 end	 of	 the	 call,	 the	 victim	 told	 the	

dispatcher	that	an	officer	had	arrived	and	Sykes	had	gone	outside.		At	a	number	
4	

of	 points	 during	 the	 call,	 between	 the	 dispatcher’s	 questions,	 there	 were	

lengthy	periods	when	neither	the	dispatcher	nor	the	victim	spoke.			

	        [¶6]		The	first	police	officer	to	arrive	was	a	Maine	State	Police	trooper.		

After	 a	 brief	 conversation	 with	 Sykes	 outside	 of	 the	 residence,	 the	 trooper	

spoke	with	the	victim,	who	reported	that	Sykes	had	punched	her	twice	in	the	

face.		The	trooper	then	returned	to	Sykes	and	arrested	him.2		A	second	officer,	

a	sergeant	with	the	Maine	State	Police,	arrived	at	the	home	and	spoke	with	the	

victim.		In	the	course	of	their	conversation,	the	victim	reenacted	the	assault	and	

described	 to	 the	 sergeant	 how	 Sykes	 had	 hit	 her.	 	 Although	 she	 allowed	 the	

officer	to	take	pictures	of	her	injury,	she	declined	to	sign	a	written	statement.			

	        [¶7]		About	two	weeks	later,	Sykes	was	charged	with	domestic	violence	

assault	 and	 pleaded	 not	 guilty.	 	 Anticipating	 the	 possibility	 that	 the	 victim	

would	not	voluntarily	testify	against	Sykes,	the	State	served	the	victim	with	a	

subpoena	compelling	her	attendance	at	trial,	which	the	court	had	scheduled	for	

April	of	2018.		On	the	day	the	trial	was	scheduled	to	begin,	however,	the	victim	

did	 not	 appear	 at	 the	 courthouse.	 	 At	 the	 State’s	 request,	 the	 court	 issued	 a	

material	witness	warrant	for	the	victim’s	arrest,	see	M.R.U.	Crim.	P.	17(h),	and	


     2		In	a	recording	from	the	trooper’s	dashboard	camera,	which	was	entered	in	evidence	and	played	

for	the	jury,	Sykes	admitted	that	he	had	slapped	the	victim	in	the	face	but	claimed	that	he	had	done	
so	in	self-defense.			
                                                                                                   5	

the	 State	 filed	 a	 motion	 in	 limine,	 requesting	 the	 court	 to	 determine	 the	

admissibility	of	the	three	sets	of	statements	made	by	the	victim	on	the	morning	

of	the	assault,	including	the	statements	she	made	during	the	9-1-1	call.		Over	

Sykes’s	objection,	see	supra	n.1,	the	court	delayed	the	commencement	of	trial	to	

the	next	day	and	proceeded	to	hold	an	in	limine	hearing.			

	      [¶8]	 	 During	 the	 hearing	 on	 the	 motion	 in	 limine,	 the	 court	 heard	

testimony	from	the	9-1-1	dispatcher	and	listened	to	the	recording	of	the	9-1-1	

call.		The	court	ultimately	determined	that	the	victim’s	statements	during	the	

9-1-1	 call,	 although	 hearsay,	 were	 admissible	 as	 excited	 utterances,	 see	 M.R.	

Evid.	 803(2),	 and	 were	 nontestimonial	 and	 thus	 not	 barred	 from	 being	

admitted	in	evidence	by	the	Confrontation	Clause,	see	U.S.	Const.	amend.	VI;	see	

also	 Me.	Const.	 art.	 I,	 §	 6;	 Crawford	 v.	 Washington,	 541	 U.S.	 36,	 68	 (2004);	

Metzger,	2010	ME	67,	¶¶	13-22,	999	A.2d	947.3			

       [¶9]		The	next	morning,	the	victim	voluntarily	appeared	at	trial	and	was	

ordered	 to	 remain	 at	 the	 courthouse	 under	 police	 supervision	 to	 ensure	 her	

availability	 if	 called	 to	 testify.	 	 One	 of	 the	 State’s	 witnesses	 was	 the	 9-1-1	



  3		The	court	excluded	from	evidence	the	two	other	sets	of	statements	encompassed	by	the	State’s	

motion	in	limine	after	determining	that	the	victim’s	statement	to	the	trooper	that	Sykes	had	hit	her	
was	not	admissible	as	an	excited	utterance,	and	that	her	similar	statement	to	the	sergeant	was	not	
admissible	as	a	statement	of	her	then-existing	physical	condition,	see	M.R.	Evid.	803(3).		The	State	
does	not	challenge	these	rulings	in	this	appeal.		
6	

dispatcher,	 through	 whom	 the	 9-1-1	 recording	 was	 admitted	 as	 evidence	

without	 objection	 from	 Sykes	 and	 played	 for	 the	 jury.	 	 Sykes	 called	 two	

witnesses	 to	 testify	 regarding	 allegedly	 exculpatory	 statements	 made	 by	 the	

victim.		Neither	party	called	the	victim	as	a	witness.			

      [¶10]	 	 The	 next	 day,	 the	 case	 was	 submitted	 to	 the	 jury,	 which	 found	

Sykes	guilty.		Following	a	sentencing	hearing	held	later	that	month,	the	court	

imposed	 a	 fully-suspended	 seven-month	 jail	 term	 and	 an	 eighteen-month	

period	of	probation.		Sykes	filed	a	timely	appeal.		See	15	M.R.S.	§	2115	(2018);	

M.R.	App.	P.	2B(b)(1).		

                                  II.		DISCUSSION	

	     [¶11]	 	 Sykes	 asserts	 that	 the	 court	 erred	 by	 admitting	 in	 evidence	 the	

recording	 of	 the	 victim’s	 9-1-1	 call	 because,	 he	 contends,	 that	 evidence	 is	

inadmissible	 pursuant	 to	 the	 Maine	 Rules	 of	 Evidence	 and	 the	 Confrontation	

Clause	of	the	Sixth	Amendment,	U.S.	Const.	amend.	VI,	and	article	I,	section	6	of	

the	Maine	Constitution.		We	consider	these	assertions	in	turn	after	addressing	

the	standard	of	review.	

A.    Standard	of	Review	

      [¶12]		At	the	in	limine	hearing,	Sykes	made	clear	that	he	objected	to	the	

admission	of	the	9-1-1	recording,	and	after	a	contested	hearing,	the	court	ruled	
                                                                                           7	

that	 the	 evidence	 was	 admissible.	 	 When	 the	 State	 offered	 the	 recording	 in	

evidence	during	the	trial,	however,	Sykes	explicitly	stated	to	the	court	that	he	

had	“[n]o	objection”	to	its	admission.			

       [¶13]		“[T]he	fact	that	the	trial	court	has	acted	on	a	motion	in	limine	does	

not	relieve	counsel	of	making	objections	.	.	.	at	the	appropriate	points	in	the	trial	

in	 order	 to	 make	 a	 record	 and	 preserve	 points	 of	 error	 for	 appeal.”	 	 Field	

&	Murray,	Maine	Evidence	§	103.7	 at	28-29	(6th	ed.	2007).		 We	have	 applied	

this	 principle—which	 triggers	 the	 more	 deferential	 standard	 of	 review	

associated	with	unpreserved	claims	of	error,	see	State	v.	Solomon,	2015	ME	96,	

¶	13	n.4,	120	A.3d	661—in	the	specific	circumstance	present	here,	where	the	

court	makes	a	pretrial	ruling	that	certain	evidence	may	be	admitted	at	trial	but	

the	opposing	party	fails	to	object	to	the	evidence	when	it	is	eventually	offered	

at	trial,	see	State	v.	Thomes,	1997	ME	146,	¶¶	6-7,	697	A.2d	1262;	State	v.	Varney,	

641	A.2d	185,	186-87	(Me.	1994).		But	we	have	recognized	an	exception	to	the	

requirement	 that	 the	 opposing	 party	 voice	 an	 objection	 when	 the	 court	

characterizes	 its	 pretrial	 ruling	 as	 final	 and	 unequivocal.	 	 See	 State	 v.	 Allen,	

2006	ME	 21,	 ¶	 9	 n.3,	 892	 A.2d	 456;	 see	 also	 M.R.	 Evid.	 103(e)	 (“A	 pretrial	

objection	to	.	.	.	evidence	must	be	timely	renewed	at	trial	unless	the	court	states	
8	

on	the	record,	or	the	context	clearly	demonstrates,	that	a	ruling	on	the	objection	

.	.	.	is	final.”).			

         [¶14]	 	 Here,	 the	 court	 arguably	 framed	 its	 ruling	 announced	 at	 the	

conclusion	of	the	in	limine	hearing	as	definitive.		Nonetheless,	Sykes’s	explicit	

acquiescence	to	the	admission	of	the	9-1-1	recording	when	it	mattered	most—

at	trial—generates	the	question	of	whether	he	preserved	his	claim	of	error	for	

appellate	review.		In	the	end,	however,	we	will	assume,	without	deciding,	that	

Sykes	preserved	his	objection	for	appeal	by	having	articulated	his	opposition	

to	the	admission	of	the	recording	at	the	pretrial	hearing	on	the	State’s	motion	

in	limine,	even	though	he	ostensibly	abandoned	that	objection	at	trial.		See	State	

v.	Haji-Hassan,	2018	ME	42,	¶	14,	182	A.3d	145	(where	we	“assum[ed],	without	

deciding,	that	[a	defendant’s]	arguments	and	the	court’s	ruling	at	the	hearing	

on	 the	 State’s	 motion	 in	 limine	 served	 to	 preserve	 the	 objection”).	 	 This	 is	

because	 the	 difference	 in	 the	 standards	 of	 review	 is	 not	 consequential	 here.		

Even	if	we	apply	the	more	exacting	level	of	scrutiny	attendant	to	a	preserved	

claim	of	error,	we	conclude	for	the	reasons	discussed	below	that	no	error	was	

committed.			

	        [¶15]	 	 Accordingly,	 “[w]e	 review	 the	 court's	 foundational	 findings	 or	

implicit	findings	to	support	admissibility	of	evidence	for	clear	error,	and	we	will	
                                                                                        9	

uphold	 those	 findings	 unless	 no	 competent	 evidence	 supports	 the	 findings,”	

State	 v.	 Taylor,	 2011	 ME	 111,	 ¶	 20,	 32	 A.3d	 440,	 and	 we	 review	 the	 court’s	

ultimate	decision	to	admit	hearsay	evidence	for	an	abuse	of	discretion,	State	v.	

Guyette,	2012	ME	9,	¶	11,	36	A.3d	916.		As	to	Sykes’s	claim	of	a	constitutional	

deprivation,	 we	 review	 de	 novo	 the	 court’s	 decision	 to	 admit	 the	 evidence.		

Metzger,	2010	ME	67,	¶	13,	999	A.2d	947.	

B.	   Excited	Utterance	

	     [¶16]		Sykes	first	contends	that	the	court	erred	by	admitting	the	victim’s	

statements	in	the	recording	of	the	9-1-1	call	as	excited	utterances.			

	     [¶17]		Maine	Rule	of	Evidence	803(2)	creates	an	exception	to	the	general	

rule	 barring	 the	 admission	 of	 hearsay	 and	 allows	 the	 admission	 of	 hearsay	

statements	“relating	to	a	startling	event	or	condition,	made	while	the	declarant	

was	under	the	stress	of	excitement	that	it	caused.”		As	we	have	explained,	“[t]he	

trustworthiness	of	[such]	an	excited	utterance	rests	upon	the	assumption	that	

the	startling	event	produces	a	statement	that	is	spontaneous	and	unreflecting	

and	made	before	there	has	been	time	to	contrive	and	misrepresent.”		State	v.	

Barnies,	680	A.2d	449,	451	(Me.	1996)	(quotation	marks	omitted).			

      [¶18]		In	order	to	qualify	as	an	excited	utterance,	the	hearsay	statement	

must	 be	 supported	 by	 three	 foundational	 elements:	 “(1)	 a	 startling	 event	
10	

occurred;	(2)	the	hearsay	statement	related	to	the	startling	event;	and	(3)	the	

hearsay	 statement	 was	 made	 while	 the	 declarant	 was	 under	 the	 stress	 of	

excitement	 caused	 by	 that	 event.”	 	 Taylor,	 2011	 ME	 111,	 ¶	 20,	 32	 A.3d	 440	

(quotation	marks	omitted).		In	making	these	three	requisite	findings,	the	court	

must	consider	such	factors	as	the	nature	of	both	the	event	and	the	statement;	

the	 amount	 of	 time	 between	 the	 event	 and	 the	 statement,	 and	 whether	 the	

declarant	 had	 the	 opportunity	 or	 capacity	 to	 reflect	 or	 fabricate	 during	 that	

time;	and	the	declarant’s	physical	and	emotional	condition	when	the	statement	

was	made.		See	Metzger,	2010	ME	67,	¶	10,	999	A.2d	947.		

	       [¶19]	 	 Two	 of	 the	 three	 foundational	 elements	 are	 not	 at	 issue	 here.		

Competent	 record	 evidence	 supports,	 and	 Sykes	 does	 not	 challenge,	 the	 trial	

court’s	 implicit	 foundational	 finding	 that	 there	 had	 been	 a	 startling	 event—

specifically,	 a	 domestic	 assault,	 which	 can	 constitute	 a	 startling	 event	 for	

evidentiary	purposes,	see	State	v.	Kimball,	2015	ME	67,	¶¶	8,	19-20,	117	A.3d	

585;	 State	 v.	 Ahmed,	 2006	ME	 133,	 ¶¶	 14-15,	 909	 A.2d	 1011.4	 	 Further,	 the	

victim’s	statements	made	during	the	call	related	to	that	startling	event.			


    4		At	the	in	limine	hearing,	the	evidence	included	not	only	the	recording	of	the	9-1-1	call	but	the	

testimony	 of	 the	 two	 officers	 who	 described	 the	 statements	 later	 made	 by	 the	 victim	 about	 the	
assault.		Although	the	court	ultimately	excluded	evidence	of	the	victim’s	statements	to	the	officers,	
the	court	was	nonetheless	entitled	to	consider	that	evidence	when	determining	the	admissibility	of	
the	statements	made	by	the	victim	during	the	9-1-1	call.		See	Field	&	Murray,	Maine	Evidence	§	104.2	
at	36-37.			
                                                                                           11	

	      [¶20]		Instead,	Sykes	focuses	on	the	remaining	foundational	element	of	

Rule	 803(2)	 and	 asserts	 that	 the	 victim’s	 statements	 on	 the	 9-1-1	 recording	

were	not	made	while	she	was	under	the	stress	of	the	excitement	caused	by	the	

startling	 event	 because	 she	 was	 “not	 crying,	 not	 fearful,”	 and	 her	 statements	

amounted	only	to	a	“matter	of	fact	conversation	with	a	911	operator.”		He	also	

contends	that	the	victim	had	time	to	reflect	and	fabricate	during	the	9-1-1	call.			

	      [¶21]	 	 In	 support	 of	 its	 conclusion	 that	 the	 victim’s	 statements	 to	 the	

9-1-1	 dispatcher	 were	 excited	 utterances,	 the	 court	 found	 that	 the	 victim	

sounded	 “upset,	 her	 voice	 has	 tremors	 on	 occasion,	 [and]	 she	 is	 clearly	

frustrated	 and	 practically	 dejected	 at	 the	 situation.”	 	 The	 court	 also	

appropriately	considered	the	victim’s	immediate	circumstances—“the	event	is	

continuing,	[Sykes]	is	in	the	house,	she’s	in	the	house,	the	children	are	in	the	

house,	he	is	speaking	with	the	children,	refuses	to	go	outside,	[and]	they	are	

yelling	 at	 each	 other	 .	 .	 .	 .”	 	 Contrary	 to	 Sykes’s	 contention,	 even	 though	 the	

record	 does	 not	 clearly	 establish	 how	 much	 time	 had	 passed	 between	 the	

assault	 and	 the	 victim’s	 9-1-1	 call	 that	 morning,	 competent	 evidence	 in	 the	

record	 supports	 this	 foundational	 finding	 that	 the	 victim’s	 statements	

throughout	the	recording	were	made	while	she	was	under	the	stress	caused	by	

the	assault,	which	occurred	sometime	earlier,	and	by	the	ongoing	threat	created	
12	

by	the	physical	proximity	of	the	victim	and	her	children	to	her	assailant	in	their	

mobile	home.		See	Taylor,	2011	ME	111,	¶¶	27-28,	32	A.3d	440	(holding	that	a	

victim	 of	 domestic	 violence	 “did	 not	 have	 an	 opportunity	 or	 capacity	 for	

reflection	or	fabrication”	when	she	called	9-1-1	after	making	a	brief	phone	call	

to	her	ex-husband	to	come	and	get	the	children);	State	v.	Watts,	2007	ME	153,	

¶¶	6,	9,	938	A.2d	21;	cf.	State	v.	True,	438	A.2d	460,	465-66	(Me.	1981)	(holding	

that	a	statement	made	two	to	three	hours	after	the	event	was	 not	an	 excited	

utterance);	 State	 v.	 Lafrance,	 589	 A.2d	 43,	 46	 (Me.	 1991)	 (holding	 that	 a	

statement	made	nearly	a	day	after	the	event	is	not	an	excited	utterance).		

      [¶22]		Here,	the	court	also	considered	the	sometimes-muted	tone	of	the	

victim’s	statements	on	the	recording	but	nonetheless	found,	as	we	note	above,	

that	 she	 sounded	 upset	 as	 shown	 by	 her	 tremulous	 voice,	 the	 nature	 of	 her	

statements,	 and	 her	 immediate	 circumstances.	 	 And	 Sykes	 himself	

acknowledges	 that,	 during	 the	 call,	 the	 victim	 “was	 upset,	 frustrated,	 and	

angry.”		There	are	reasons	why	a	victim’s	tone	of	voice—standing	alone—may	

not	reflect	stress	caused	by	a	recent	or	ongoing	startling	event.		For	example,	

the	stressful	impact	of	such	an	event	may	result	in	a	“flat	affect.”		See	In	re	J.V.,	

2015	ME	163,	¶	12,	129	A.3d	958.		Or,	if	children	are	present—as	there	were	

here—a	victim	may	make	a	conscious	effort	to	speak	in	a	calm	tone	for	their	
                                                                                                            13	

benefit.	 	 Therefore,	 although	 the	 tone	 of	 a	 victim’s	 speech	 is	 relevant	 to	

determining	 the	 applicability	 of	 Rule	 803(2),	 see	 Metzger,	 2010	 ME	 67,	 ¶	 10,	

999	A.2d	947,	that	factor	is	not	dispositive	of	the	issue.		Here,	given	the	court’s	

supported	findings,	the	court	did	not	clearly	err	by	implicitly	rejecting	Sykes’s	

argument	 that	 the	 evidence	 was	 inadmissible	 because	 the	 victim	 had	 the	

presence	of	mind	or	the	time	to	reflect	and	fabricate	during	the	call.			

C.	       Confrontation	Clause	

	         [¶23]		Sykes	also	contends	that	even	if	the	9-1-1	recording	was	an	excited	

utterance	and	thus	not	inadmissible	on	hearsay	grounds,	it	should	have	been	

excluded	 on	 the	 independent	 constitutional	 ground	 that	 admission	 of	 the	

recording,	 when	 the	 declarant	 did	 not	 testify,	 deprived	 him	 of	 his	 right	 to	

confront	the	witness—a	right	guaranteed	to	him	by	the	Confrontation	Clause	of	

the	 Sixth	 Amendment	 to	 the	 United	 States	 Constitution	 and	 by	 article	 I,	

section	6	of	the	Maine	Constitution.5			




      5		The	State	argues	on	appeal	that	Sykes	waived	his	confrontation	right	because	he	failed	to	call	

the	 victim	 to	 testify	 even	 though	 he	 knew	 she	 was	 present	 in	 the	 courthouse.	 	 This	 argument	 is	
meritless	and,	in	fact,	perverts	the	protections	of	the	Confrontation	Clause.		It	was	the	State	that	chose	
to	 present	 evidence	 of	 an	accuser’s	 out-of-court	 statement	without	 calling	 her	 to	 testify,	 and	 that	
choice	did	not	impose	on	Sykes	a	responsibility	to	call	a	witness	who	may	well	have	testified	against	
his	 interest.	 	 See	 Melendez-Diaz	 v.	 Massachusetts,	 557	 U.S.	 305,	 324	 (2009)	 (“Converting	 the	
prosecution’s	 duty	 under	 the	 Confrontation	 Clause	 into	 the	 defendant’s	 privilege	 [to	 subpoena	 a	
witness]	shifts	the	consequences	of	adverse-witness	no-shows	from	the	State	to	the	accused.”).			
14	

	      [¶24]	 	 The	 federal	 Confrontation	 Clause,	 which	 applies	 to	 the	 states	

through	 the	 Fourteenth	 Amendment,	 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;	see	Davis	v.	Washington,	547	U.S.	

813,	 821	 (2006);	 Crawford,	 541	 U.S.	 at	 42.	 	 Article	 I,	 section	 6	 of	 the	 Maine	

Constitution	provides	similarly	that	“[i]n	all	criminal	prosecutions,	the	accused	

shall	have	a	right	.	.	.	[t]o	be	confronted	by	the	witnesses	against	the	accused.”		

See	also	State	v.	Rickett,	2009	ME	22,	¶	10,	967	A.2d	671.		Even	if	an	out-of-court	

statement	 is	 admissible	 pursuant	 to	 an	 exception	 to	 the	 hearsay	 rule,	 these	

constitutional	 provisions	 bar	 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,”	

Crawford,	541	U.S.	at	53-54	(emphasis	added);	see	also	Metzger,	2010	ME	67,	

¶¶	13-14,	999	A.2d	947.		Nontestimonial	statements,	on	the	other	hand,	do	not	

trigger	the	protections	of	the	Confrontation	Clause.		See	Rickett,	2009	ME	22,	

¶	11,	967	A.2d	671.			

       [¶25]	 	 As	 we	 have	 stated,	 the	 characteristics	 of	 a	 nontestimonial	

statement	made	during	a	9-1-1	call	are	that	

       (1)	 the	 caller	 is	 speaking	 about	 events	 as	 they	 are	 actually	
       happening;	(2)	it	would	be	clear	to	a	reasonable	listener	that	the	
                                                                                        15	

     victim	 is	 facing	 an	 ongoing	 emergency;	 (3)	 the	 nature	 of	 the	
     questions	 asked	 and	 answered	 are	 objectively	 necessary	 and	
     elicited	 for	 the	 purpose	 of	 resolving	 the	 present	 emergency;	 and	
     (4)	the	victim’s	demeanor	on	the	phone	and	circumstances	at	the	
     time	of	the	call	evidence	an	ongoing	emergency.	
     	
Metzger,	2010	ME	67,	¶	16,	999	A.2d	947	(quotation	marks	omitted);	see	also	

Davis,	547	U.S.	at	822.			

	      [¶26]		Here,	the	clear	purpose	of	the	9-1-1	dispatcher’s	questions	to	the	

victim	was	not	investigative	but	rather	to	obtain	real-time	information	about	

the	circumstances	underlying	the	victim’s	call	for	police	assistance	in	order	to	

communicate	 that	 information	 to	 the	 responding	 officers	 so	 that	 they	 could	

better	 assess	 the	 situation	 for	 the	 safety	 of	 the	 people	 at	 the	 scene	 and	 the	

officers’	own	safety.		And	the	victim’s	responses	fall	well	within	the	nature	of	

nontestimonial	assertions.		For	instance,	on	the	recording	the	victim	identified	

Sykes	 as	her	assailant	and	reported	that	he	hit	her	with	“his	closed	fist”;	she	

confirmed	 that	 there	 were	 no	 weapons	 in	 the	 house;	 she	 described	 Sykes’s	

location	within	the	house	and	his	state	of	mind;	she	identified	who	was	in	the	

residence	at	the	time	and	what	they	were	doing;	and	she	described	the	house	

and	 the	 cars	 outside	 to	 help	 the	 officers	 find	 her	 location.	 	 This	 and	 other	

information	provided	by	the	victim,	and	the	context	in	which	it	was	provided,	

reveal	the	nontestimonial	character	of	her	statements.	
16	

	      [¶27]	 	 Sykes’s	 reliance	 on	 Hammon	 v.	 Indiana,	 which	 was	 decided	 in	 a	

consolidated	 opinion	 with	 Davis	 v.	 Washington,	 547	 U.S.	 813	 (2006),	 is	

misplaced.		In	Hammon,	the	victim—who	did	not	testify	at	trial—made	a	report	

of	a	“domestic	disturbance”	to	a	police	officer	who	had	responded	to	her	house,	

but	when	she	made	the	challenged	statements,	“[t]here	was	no	emergency	in	

progress;	 the	 interrogating	 officer	 testified	 that	 he	 had	 heard	 no	 arguments	

.	.	.	[and	w]hen	the	officer	questioned	[the	victim]	for	the	second	time	.	.	.	he	was	

not	seeking	to	determine	.	.	.	‘what	is	happening,’	but	rather	‘what	happened.’”		

Id.	 at	 819,	 829-30.	 	 The	 United	 States	 Supreme	 Court	 concluded	 that,	 given	

those	 circumstances,	 the	 victim’s	 statements	 were	 testimonial	 and	 therefore	

inadmissible	as	a	constitutional	matter.		Id.	at	829-30.		The	Court	distinguished	

the	circumstances	presented	in	Hammon	from	those	in	Davis,	where	the	Court	

concluded	 that	 the	 statements	 at	 issue,	 made	 during	 a	 9-1-1	 call,	 were	

nontestimonial	because	at	the	time	of	the	call	the	declarant	“was	alone,	not	only	

unprotected	 by	 police	 (as	 [the	 victim	 in	 Hammon]	 was	 protected),	 but	

apparently	in	immediate	danger	from	[the	perpetrator].		She	was	seeking	aid,	

not	 telling	 a	 story	 about	 the	 past.”	 	 Id.	 at	 831;	 see	 also	 Rickett,	 2009	 ME	 22,	

¶¶	14-15,	967	A.2d	671	(holding	that	“the	questions	asked	and	answered	were	

of	the	type	that	would	allow	the	officers	who	were	called	to	investigate	to	assess	
                                                                                        17	

the	 situation,	 the	 threat	 to	 their	 own	 safety,	 and	 the	 possible	 danger	 to	 [the	

victim]”	and	were	therefore	nontestimonial).		That	is	the	case	here.	

	        [¶28]	 	 Because	 the	 court	 did	 not	 err	 by	 concluding	 that	 the	 victim’s	

statements	were	nontestimonial,	the	admission	of	the	9-1-1	call	recording	in	

evidence	did	not	violate	Sykes’s	constitutional	rights.			

                                        III.		CONCLUSION	

	        [¶29]	 	 The	 court	 did	 not	 err	 when	 it	 determined	 that	 the	 victim’s	

statements	on	the	recording	of	the	9-1-1	call	were	both	excited	utterances	and	

nontestimonial,	and	we	therefore	affirm	the	judgment.			

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	     	      	     	       	
	
Jesse	 James	 Ian	 Archer,	 Esq.	 (orally),	 Sherman	 &	 Worden,	 P.A.,	 Auburn,	 for	
appellant	Dwain	A.	Sykes	
	
Andrew	S.	Robinson,	District	Attorney,	and	Patricia	A.	Mador,	Asst.	Dist.	Atty.	
(orally),	Lewiston,	for	appellee	State	of	Maine	
	
	
Androscoggin	County	Unified	Criminal	Docket	docket	number	CR-2017-3247	
FOR	CLERK	REFERENCE	ONLY	
