No. 103 People v Juan Nieves-Andino

Juan Nieves-Andino is serving 22 years to life in prison for the murder of a fellow drug dealer, Jose Millares, on the 200 block of East 176th Street in the Bronx in November 2000. A police officer arrived at the scene within minutes, called for an ambulance, and after obtaining the victim's name and address, asked, "What happened?" Millares replied that he'd had an argument with "Bori" (using the defendant's nickname) and that "Bori" had shot him three times. Millares also gave the officer
defendant's address. Millares died a month later.

Supreme Court allowed the officer to testify about Millares's statement under the "excited utterance" exception to the hearsay rule, rejecting defendant's argument that the statement was
testimonial under Crawford v Washington (541 US 36 [2004]) and its admission as evidence would
violate his constitutional right to cross-examine witnesses against him. The court said, "The statement was not in response to any structured police questioning which would constitute 'police interrogation' as specified in Crawford, but promptly made to [the officer] within minutes of the shooting, prior to the detention of any suspect.... An 'excited utterance' is not testimonial in nature when made by a declarant, who 'has no time for reflection or deliberation and thus has not made the statement in contemplation of its use in a future trial....'"

The Appellate Division, First Department affirmed the conviction and sentence, saying, "Whether a particular excited utterance is 'testimonial' under [Crawford] depends upon the circumstances, with the 'particular nature of any police inquiry' being a critical factor.... Here, aside from asking the victim some pedigree questions, the officer simply asked 'What happened.' Accordingly, the victim's response was not testimonial under the interpretation of Crawford that this court has repeatedly expressed ... and that we see no reason to revisit."

Nieves-Andino argues Millares's statement is testimonial under Crawford and Davis v Washington (126 S Ct 2266 [2006]), which said statements "are testimonial when the circumstances objectively indicate that there is no [] ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Nieves-Andino argues that, in his case, "there was no ongoing emergency at the time the statement was made since the incident was clearly over, and the assailant had left the scene and was no longer posing a
bona fide physical threat to the victim." He also says the statement focused on "past criminal conduct" and "the primary intent of both the police officer and [Millares] was to assist in an investigation of an incident that had ended."

The prosecution argues the defendant cannot show, as a matter of law, that no emergency existed because "nothing in the record establishes that [the officer] knew or had reason to know that the
assailant had left the scene." It says the purpose of the officer's inquiry "was to address the ongoing emergency" of Millares's injury "and to ascertain the danger of the situation."