Commonwealth v. Nesbitt
Facts
Shortly after being stabbed twenty-three times, the victim called 911, begged for immediate help, said someone had come into her house and tried to kill her, and identified Ralph Nesbitt as the assailant. Moments later, her neighbor and cousin found her lying in blood in the hallway, and when he asked what had happened, she said, "Ralph did this to me" and pleaded not to die; she died about fifteen minutes later. At trial, the Commonwealth also introduced evidence that blood on a bicycle handlebar yielded only a very low-level DNA mixture from which neither the victim nor the defendant could be excluded, though the analyst also acknowledged essentially no one could be excluded. The defendant objected to the victim's statements but not to the DNA testimony.
Issue
Whether admission of the victim's statements during the 911 call and to her neighbor violated the defendant's confrontation rights because the statements were testimonial. Also, whether admission of inconclusive DNA evidence from the bicycle created a substantial likelihood of a miscarriage of justice.
Rule
A challenged out-of-court statement must first satisfy a hearsay exception and then be evaluated under Crawford-Davis-Gonsalves. Statements made in response to law-enforcement questioning are testimonial per se unless the questioning is meant to secure a volatile scene or establish the need for or provide medical care; the primary-purpose inquiry considers whether the declarant described events as they were happening, whether there was an ongoing emergency, whether the questions were necessary to resolve that emergency, and the level of formality. Statements not made to law enforcement are not testimonial per se, but are testimonial in fact only if a reasonable person in the declarant's position would anticipate the statement being used in investigating and prosecuting a crime. Separately, a common-law dying declaration by a homicide victim made under belief of imminent death concerning the cause or circumstances of the impending death is admissible even if testimonial. Inconclusive DNA evidence is admissible only if probative of an issue of consequence; otherwise its slight value may be substantially outweighed by prejudice and misleading effect.
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