The live testimony of Joe Madison would have been devastating for Alton Nelson Wilder.
But fortunately for Wilder, Madison, a homeless man who said he saw two men wheeling away items from a stockyard in Norfolk, didn’t show up for trial and his observations came in through a 911 tape.
Madison’s statements were admissible under the present sense impression exception to the hearsay rule, the Virginia Court of Appeals ruled today, because he gave a contemporaneous description of the actions of the men and what they were wearing to the dispatcher.
Police responded promptly and found Wilder, another suspect and 400 pounds of items scheduled to be refurbished for use on Navy ships.
But Madison’s statements were testimonial evidence under recent U.S. Supreme Court decisions interpreting the Confrontation Clause, the Court of Appeals panel said. It noted that courts have found statements in 911 calls to be non-testimonial, but only when they involved an ongoing emergency.
Madison said he was calling from the trees where he usually slept and did not indicate that the thieves saw him or presented any immediate danger to him, the court said in reversing Wilder’s grand larceny conviction.
By Alan Cooper