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Name: People v. Nelson
Case #: D057195
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/17/2010

The victim’s statement made to a firefighter while in an ambulance which identified appellant as the shooter was not “testimonial” under Crawford v. Washington (2004) 541 U.S. 36 and its progeny. Appellant shot the victim who was then taken to the hospital in critical condition. On the way, a firefighter who rode with the victim in the ambulance asked him who the shooter was. The victim identified appellant by his first name. Police had not asked the fireman to question the victim, but he did so because he thought the victim was going to die. The firefighter subsequently provided the information to police. The statement was admitted at appellant’s attempted murder trial since the victim could not be found to testify. Appellant renewed his Sixth Amendment and hearsay objections on appeal. The court agreed with appellant that a firefighter could be an agent of police for Crawford purposes. But the court found the statement was not “testimonial.” Since the victim was near death and on the way to the hospital, the circumstances “lack the solemnity and formality associated with a testimonial statement.” The court also found it significant that at the time the statement was made the shooter was still unidentified and at large. Thus, the information was needed to evaluate whether there was an ongoing danger to the public.