appellate court employs an unlimited standard of review when
addressing whether a defendant's right to confront
witnesses under the Sixth Amendment to the United States
Constitution has been violated.
Confrontation Clause applies to testimonial statements and
prohibits the admission of such statements by a witness who
does not appear at trial, unless the witness is unavailable
to testify and the defendant had a prior opportunity for
statements of an informant during a controlled law
enforcement drug buy supporting the prosecution of the
defendant in this case, recorded and played for the jury,
were testimonial. Their content reinforced evidence of the
identity of the seller and the substance purchased; it was
not limited to context. The circumstances surrounding the
statements also supported their testimonial nature.
Admission of two testimonial statements by an informant
without providing the defendant an opportunity to
cross-examine the informant was error in this case, but it
of the judgment of the Court of Appeals in an unpublished
Appeal from Ellis District Court; Edward E. Bouker, judge.
Judgment of the Court of Appeals affirming the district court
is affirmed. Judgment of the district court is affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
argued the cause and Johnathan M. Grube, of the same office,
was on the brief for appellant.
G. Voth, assistant solicitor general, argued the cause, and
Thomas J. Drees, county attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
appeal requires this court to decide whether an audio
recording of a nontestifying informant's statements can
be admitted into evidence in a criminal trial without
violating the defendant's right to confront witnesses
under the Sixth Amendment to the United States Constitution
and Crawford v. Washington, 541 U.S. 36, 42, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Court of Appeals
rejected the defense argument against admission and affirmed
defendant David Darrel Williams' conviction for
distribution of methamphetamine. We accepted Williams'
petition for review to address the Confrontation Clause
also raises a challenge to his sentence, arguing that his
prior convictions could not be used to enhance his sentence
without those convictions being proved to a jury beyond a
reasonable doubt, relying on Apprendi v. New Jersey,
530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He
concedes that we have consistently rejected this argument,
see, e.g., State v. Ivory, 273 Kan. 44, 47,
41 P.3d 781 (2002). We do so again today, and no further
discussion of this challenge is necessary.
detailed below, we affirm the decision of the Court of
Appeals and the judgment of the district court because the
error in admitting the informant's statements was
and Procedural Background
dusk on September 13, 2012, KBI Special Agent Michael Lind
met with a confidential informant to set up a purchase of
methamphetamine from Williams. The informant arranged a
meeting with Williams during a telephone call in which
Williams gave the informant directions to his location. After
the call, Lind drove with the informant to meet Williams.
and the informant reached the meeting place, Williams walked
out to the sidewalk. Lind stopped the car, and Williams got
into the back passenger seat. Williams asked if Lind and the
informant "wanted a line." At trial, Lind would
testify that this "could mean a line of methamphetamine,
as a way of ingesting the drugs."
point, Williams asked Lind to drive to another location. Lind
did so. Williams then removed a small plastic baggie from his
pocket and placed it on the center console. Lind picked the
bag up and examined it, attempting to determine whether it
contained drugs and, if so, in the correct quantity.
Satisfied that the bag contained what he was looking for,
Lind paid Williams $120 of "Drug Enforcement Unit buy
drove Williams back to where he had picked him up. After
dropping Williams off, Lind drove to another location and
conducted a field test on the substance in the baggie. The
test confirmed that the substance was methamphetamine.
would eventually be arrested and charged with distribution of
methamphetamine in violation of K.S.A. 2015 Supp.
trial, Lind testified about the details of the buy. Lind
identified Williams at trial as the person who had sold him
the methamphetamine. Lind also described wearing a "body
wire" to create an audio recording of the drug deal.
Lind's informant had been subpoenaed to testify at trial,
she did not appear. Williams objected to the State playing
the 4-minute audio recording of the deal for the jury,
arguing that the statements of the informant that could be
heard on the recording were testimonial and that playing them
for the jury would violate his rights under the Sixth
Amendment Confrontation Clause. Moreover, Williams argued at
the time, the informant's statements did not satisfy any
hearsay exception in Kansas statutes.
specifically complained about two statements from the
informant, which, he argued, identified him and the content
of the baggie. Although it is difficult to hear on the
recording included in the record on appeal, the parties seem
to agree on the content of the first statement. It occurred
when Williams got into the car, and the informant
acknowledged him by saying, "'Say hi to Dave, "
or something similar. The second statement, which can be
heard clearly on the recording in the record on appeal, was
the informant's response to Williams' request about
whether Lind and the informant wanted "a line." The
informant responded with one word: "meth."
district court judge overruled the defense objection and
allowed the entire recording to be played to the jury. The
judge had concluded that there was no Confrontation Clause
problem because the informant's statements did not
qualify as testimonial. The judge said that the informant
"had no idea that the tape was being made. She was not
being questioned by law enforcement. She was not in the
custody of law enforcement." The judge also had
concluded that the statements satisfied Kansas' hearsay
exception for vicarious admissions. See K.S.A. 2015 Supp.
60-460(i)(2) (vicarious admissions admissible when party,
declarant participating in plan to commit crime).
addition to Lind, Harold Riddle, a forensic chemist for the
KBI, and Scott Braun, a detective with the Ellis County
Sheriff's Department, testified at trial. Riddle had
tested the substance Lind purchased from Williams and had
confirmed that the substance was methamphetamine. Braun had
provided security for Lind during the drug buy by monitoring
the audio through Lind's body wire. Braun testified that
he had identified Williams from hearing his voice during the
drug transaction; he had previously heard Williams' voice
on multiple occasions. After recognizing Williams from his
voice, Braun requested that a photo of Williams be sent to
his cell phone. After the controlled buy had concluded, Braun
showed the photo of Williams to Lind. Braun testified that
Lind confirmed Williams' identity from the photo.
version of the first of the informant's two challenged
statements was featured in the State's closing argument,
when the prosecutor argued that the State had proved the
distribution of drugs beyond a reasonable doubt:
"[W]e do have the evidence. We have the recording and
you hear it.
"'Hi, Dave' at the beginning; 'Thanks,
Dave' at the end. Talking about other distribution of
drugs, 14 grams. This was not an accident. This was an
intentional act on his part to distribute."
jury found Williams guilty, and the district judge sentenced
Williams to 49 months in prison, followed by 24 months'
appealed to the Court of Appeals, arguing that application of
four factors from State v. Brown, 285 Kan. 261, 291,
173 P.3d 612 (2007), demonstrated that the challenged
informant's statements should be classified as
testimonial: (1) an objective witness in the informant's
position would reasonably believe his or her statements would
later be available for use in the prosecution of a crime; (2)
the statements were made in a car with an undercover law
enforcement agent, in other words, to that agent; (3) the
statements proved facts relevant to a later drug prosecution
that was the primary purpose of the encounter, when the
totality of the circumstances are viewed objectively; and (4)
although the statements may have appeared to be informal to
the defendant, they were, in fact, part of a planned scenario
sufficiently formal to make them inherently testimonial.
Williams also relied upon precedents from the United States
Courts of Appeals for the Sixth and Seventh Circuits that
held informants' statements to be testimonial and on an
earlier Court of Appeals decision with a similar holding. See
United States v. Cromer, 389 F.3d 662 (6th Cir.
2004); United States v. Silva, 380 F.3d 1018 (7th
Cir. 2004); State v. Adams, 35 Kan.App.2d 439, 131
P.3d 556 (2006), rev'd on other grounds 283 Kan.
365, 153 P.3d 512 (2007).
part, the State's Court of Appeals argument on whether
the informant's challenged statements were testimonial
was focused primarily on the Brown factors. It did
not address the Sixth and Seventh Circuit cases and attempted
to distinguish the earlier Court of Appeals decision in
panel in this case determined that the informant's
statements were not testimonial "in nature under the
circumstances presented. . . . [T]here is no evidence that
the informant knew the drug transaction was being recorded.
Likewise, the informant was not responding to questions from
Agent Lind nor was she in custody at the time."
State v. Williams, No. 111, 046, 2015 WL 5458672, at
*3 (Kan. App. 2015) (unpublished opinion). The panel observed
that the informant apparently had not been granted immunity
from prosecution, making her a coconspirator in the drug
transaction; and it relied on this court's recognition
that statements made in furtherance of a conspiracy are,
categorically, nontestimonial. 2015 WL 5458672, at *3 (citing
State v. Betancourt, 301 Kan. 282, 300-01, 342 P.3d
panel also applied the multifactor Brown test. It
regarded the result on the first factor as
"unclear" because "the informant's
statements were not made during a custodial interrogation,
were not made to Agent Lind, and were not made in response to
Agent Lind's questions, " but "an objective
person who is helping an undercover officer buy drugs might
reasonably expect that any statements made during the
transaction would be used in a later prosecution."
Williams, 2015 WL 5458672, at *4. In the panel's
view, the remaining Brown factors pointed to a
conclusion that the two challenged informant statements were
nontestimonial. 2015 WL 5458672, at *4.
panel also believed the informant's statements in this
case were comparable to informant statements considered in
United State v. Hendricks, 395 F.3d 173 (3d Cir.
2005), which were held to be nontestimonial. The prosecution
had asserted in Hendricks that the recorded
statements were not admitted for the truth of the matter
asserted. Rather, they provided "context" for
statements of various defendants who could also be heard on
recorded conversations about illegal drug trade. 395 F.3d at
panel did not independently assess whether the
informant's statements challenged in this case met any
Kansas hearsay exception. It did hold in the alternative that
any Confrontation Clause error in admitting the
informant's statements into evidence was harmless.
Williams, 2015 WL 5458672, at *6 (citing State
v. Ward, 292 Kan. 541, 565, 569, 256 P.3d 801');">256 P.3d 801');">256 P.3d 801');">256 P.3d 801 ).
petition for review, Williams specifically takes issue with
the Court of Appeals' observation that the
informants' statements "were not made to a law
enforcement officer or to another government official, "
2015 WL 5458672, at *4, arguing that such a rationale for
holding a statement nontestimonial could entirely undermine
the Confrontation Clause. Williams also singles out the
panel's statement that the informant's single word
"meth" was not "offered to . . . [identify]
the substance [the defendant] was selling" for
"[T]he district court did not limit the use of the
statements at all. It [would be] an unusually prescient jury
that would know that a statement identifying the subject of a
controlled [buy] as 'meth' couldn't be used to
help prove that the subject was methamphetamine."
also attacks the panel's alternative harmless error
holding by arguing that, absent the confidential
informant's recorded greeting of him, the State's
evidence could not have carried the day. Specifically, he
says that the law enforcement testimony about recognizing
Williams' cell-phone photo likeness and recorded voice
was not "so overwhelming and undisputed that a jury
might not have formed a reasonable doubt regarding the
identity of the person allegedly selling drugs."
State did not file a written response to Williams'
petition for review or a supplemental brief after the
petition was granted by this court. It did, however, submit a
letter of additional authority under Rule 6.09 (2017 Kan.
S.Ct. R. 39). The letter asserted that the district court
judgment could be affirmed if it reached the right result,
even if it did so for the wrong reason, citing Rose v.
Via Christi Health System, Inc., 279 Kan. 523, 525, 113
P.3d 241 (2005). Previewing the prosecutor's focus at
oral argument before us, the letter cited decisions from the
Second, Fifth, Seventh, Ninth, and Eleventh Circuits for the
proposition that a nontestifying informant's or other
person's statements could be admitted in a criminal trial
to provide context rather than for the truth of the matter
asserted. See United States v. Paulino, 445 F.3d
211, 216 (2d Cir. 2006); United States v. Tolliver,
454 F.3d 660, 666 (7th Cir. 2006); United ...