On Appeal from Superior Court, Chittenden Unit, Criminal Division Michael S. Kupersmith, J.
Thomas J. Donovan, Jr., Chittenden County State’s Attorney, and Pamela Hall Johnson, Deputy State’s Attorney, Burlington, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶1. Defendant Lawrence Alers was convicted of simple assault following a jury trial. He appeals, contending (1) that the trial court’s admission of a particular out-of-court statement under the “excited utterance” exception to the hearsay rule violated his rights under the Confrontation Clause of the Sixth Amendment, and (2) that without the offending evidence, the State did not present sufficient evidence of bodily injury to support the conviction. We conclude that because the out-of-court statement was testimonial, its admission did violate defendant’s confrontation rights. Although the error was not harmless, we conclude that even in the absence of the offending evidence, the State presented sufficient evidence to support a conviction . We accordingly reverse defendant’s conviction and remand for a new trial.
¶ 2. The testimony at trial may be summarized as follows. Around 8:30 p.m. on August 2, 2013, two men were parked at the Champlain Farms convenience store and gas station on Route 7 in Colchester when they heard a woman screaming. Both then observed a man with his arms around the neck of a woman (later identified as A.P.), dragging her backwards toward a black SUV. One of the men testified that the woman was in a “chokehold” and was being jostled “like a ragged doll, ” was screaming, “freaked out, ” and “beyond herself.” He shouted at the assailant, “ what the fuck are you doing?” and started running in their direction. The assailant, later identified by one of the witnesses as defendant, released the woman and entered a parked car. The man then observed defendant drive toward A.P., as though he was trying to run her over, before exiting the lot and driving away. The other man also testified that the car appeared to “lurch forward towards” the woman, and then left the lot. He described the woman’s demeanor at that point as “shaken” and “very distressed.”
¶ 3. The Colchester Police Department received a panicked call about a fight at the Champlain Farms store, and an officer arrived at the scene about ten to fifteen minutes later. By the time the officer arrived, there were several other police officers already there standing with A.P. by a vehicle. The officer testified that he approached A.P., started to talk with her, and observed that she was “very upset, ” “shaking, ” and “having a hard time breathing.” The officer testified that A.P. told him that she had been assaulted by her ex-boyfriend, whom she identified as defendant. Over defendant’s hearsay objection, the officer testified that the A.P. told him she had argued with defendant, that she started to walk away, and that he then grabbed her from behind with his arm around her neck and dragged her backwards toward his vehicle. She told him that “she was scared and... felt pain.” The officer asked her to rate the pain from one to ten, and she “put it at about a four.” The officer recalled that, while he was speaking with A.P., she was very upset and crying, even “borderline hysterical at times.” Defendant was charged with aggravated assault for driving his car at A.P., and simple assault for grabbing her around the neck.  Neither A.P. nor defendant testified at trial. The jury acquitted defendant of aggravated assault by attempt to cause serious bodily injury, and convicted defendant on the charge of simple assault by recklessly causing bodily injury. This appeal followed.
II. Hearsay Statements
¶ 4. At trial, defendant objected to the admission of the police officer’s testimony on what A.P. had told him. Defendant conceded that some of the statements might be admissible under the rules of evidence, but argued that their admission would nonetheless violate his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution because the statements were testimonial.  The trial court ruled that A.P.’s statements were admissible as excited utterances, and never squarely addressed defendant’s Confrontation Clause objection. Instead, the court stated: “Well, it’s not testimony if it’s an excited utterance.”
¶ 5. On appeal, defendant argues the trial court erred in admitting the officer’s testimony on A.P.’s out-of-court statements to the officer, and in particular her statement that she was in pain, as excited utterances.  See V.R.E. 803(2) (allowing admission of out-of-court statements “relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition”). Defendant further argues that the admission of the evidence violated the Confrontation Clause.
¶ 6. We review the trial court’s factual findings for clear error, and we review de novo the court’s legal conclusion as to whether the hearsay was testimonial. State v. Shea, 2008 VT 114, ¶ 8, 184 Vt. 453, 965 A.2d 504.
¶ 7. In Shea, we considered facts similar to this case. There, defendant was accused of domestic assault, the complainant did not testify, and the trial court allowed an officer who arrived on the scene following the assault to testify about statements the complainant made to him about the assault. Id. ¶¶ 2-3. The defendant conceded that the hearsay statements were admissible under the rules of evidence as excited utterances, but challenged the admissibility of the statements on Confrontation Clause grounds. Id. ¶ 8. Citing Crawford v. Washington, 541 U.S. 36, 68 (2004), we explained that the admission of an out-of-court statement violates the Confrontation Clause where the statement was testimonial, the declarant is unavailable to testify at trial, and there was no prior opportunity for cross-examination. Id. ¶¶ 8-9. This is true even when the statement is otherwise admissible under the rules of evidence (e.g., under a Rule 803 or 804 exception). Id. ¶ 8 (stating that where “statement qualifies as an excited utterance, ” declarant ...