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State v. Araujo

November 2, 2007


Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 747, 144 P.3d 66 (2006). Appeal from Sedgwick district court; DAVID W. KENNEDY, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.


The Confrontation Clause of the Sixth Amendment to the United States Constitution does not apply to non-hearsay evidence and does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.

The opinion of the court was delivered by: Luckert, J.

Previn J. Araujo seeks reversal of his conviction, arguing the trial court erroneously admitted out-of-court statements given to police officers during a 911 call and during the investigation prompted by the call. Araujo argues admission of these statements violated the Confrontation Clauses of the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.

Citing Crawford v. Washington, 541 U.S. 36, 158 L.Ed. 2d 177, 124 S.Ct. 1354 (2004), and Davis v. Washington, ___ U.S. ___, 165 L.Ed. 2d 224, 126 S.Ct. 2266 (2006), Araujo argues that the State is barred from using testimonial out-of-court statements against a criminal defendant unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. He suggests that statements made to officers in the course of an investigation are testimonial.

We do not reach the issue of whether statements made to officers receiving and responding to a 911 call are testimonial however, because, in this case, the trial court admitted the statements for the limited non-hearsay purpose of explaining the officers' actions of approaching the defendant, who was believed to be the suspect in the assault reported by the 911 caller. This interaction led to the discovery of drugs and to Araujo's arrest and conviction on drug charges. Because the out-of-court statements of the 911 caller were not admitted for the truth of the matter asserted and were not hearsay, Araujo's right of confrontation is not implicated.


The trial of this matter was consolidated with an evidentiary hearing on Araujo's motion to suppress. At the trial, Wichita Police Officers Seiler and Crowe testified they were dispatched to a residence in response to a 911 call made by James Lewis.

Lewis was not present during the trial. Both a transcript and a recording of the 911 call were admitted into evidence, and Officers Seiler and Crowe testified about what Lewis told them when they arrived at the residence.

Officer Seiler testified that Lewis stated "a black male, who [Lewis] knew as PJ, was threatening him." Lewis told the officers that PJ was known to carry weapons, specifically guns. While Officer Crowe continued speaking with Lewis regarding the threat, Officer Seiler examined their surroundings in the residence to ensure their safety and, while doing so, noticed a picture of a black male in a nearby photograph. He pointed out the man to Lewis and Lewis indicated the man was PJ. Officer Crowe testified that Lewis told them PJ was the boyfriend of another resident of the house, Tracy Drake. Lewis explained he had been staying at the house for 3 or 4 nights.

When the officers began to testify regarding Lewis' statements, Araujo, through defense counsel, objected to both officers' testimony based on hearsay grounds because Lewis, despite being under subpoena, was absent. During the first officer's testimony, the trial court overruled the objection, ruling that Lewis' statements were "admissible to show this officer's behavior, and they go to the probable cause for talking with [Araujo]." After the objection to the second officer's testimony regarding Lewis' statements, the trial court found the statements were "admissible to show what the officers did, why they did what they did later." The judge further stated: "I'm not taking [the statements] for the truth of what Mr. Lewis said."

After testifying regarding the conversations with Lewis, the officers testified regarding the events that led to Araujo's arrest and the seizing of the evidence that is subject to the motion to suppress. They explained that at approximately the same time as Lewis was identifying the man in the photograph as PJ, a car, which Officer Seiler recognized as belonging to Drake, pulled into the driveway. Drake got out on the driver's side and started walking to the front door, but when she looked up and saw Officer Seiler, she turned around and retreated toward the car. Seiler then stepped onto the porch and commanded Drake to stop so he could speak with her. Officer Crowe remained inside the house with Lewis.

As Drake turned around, Officer Seiler noticed a black male passenger inside the car. When he pointed his flashlight at the windshield, the officer saw the man place his hand in his pocket and reach under the seat. Focusing his attention on the passenger, Officer Seiler started to approach the car and recognized the man as the person in the photograph that Lewis had used to identify PJ. Seiler ordered the passenger to place his hands where the officer could see them. The man did so momentarily but then reached into his pocket. Seiler pointed his gun at the passenger and ordered him to display his hands. The passenger complied.

Officer Seiler radioed for backup and, when the additional officers arrived, ordered the passenger to step out of the car. Seiler patted him down for weapons. Then, looking inside the vehicle's interior, Seiler saw a plastic bag of marijuana on the passenger seat. This discovery led to Araujo's arrest for possession of marijuana. Officer Seiler also reached under the passenger's seat to scan for a weapon and, instead, discovered a plastic bag of crack cocaine. Ultimately, a search warrant was issued for the house. A safe was located and a crack pipe, cocaine, ...

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