[00:00:01] Speaker 02:
Next on our docket is United States versus Brian Riggs.

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Good morning.

[00:00:07] Speaker 02:
Good morning.

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And take your time, but when you're ready.

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Thank you, Your Honor.

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My name is Carl Gunn.

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I represent Mr. Riggs.

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I'm going to try to reserve four minutes for rebuttal if I can.

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The confrontation clause issues in this case are resolved by two key Supreme Court decisions.

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Washington versus Davis, and the recent decision in Smith versus Arizona.

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I'd like to start with the second of those to respond to the government's response to my supplemental authority letter.

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It says there were no reports or notes by non-testifying biologists referenced.

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Can you move from Smith and address Davis first?

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If you would, Your Honor.

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I did want to point out one mistake in the supplemental authority letter, though, but I'll get to that later.

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OK, thank you.

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On Davis, Your Honor, I think you basically have two different domestic violence situations.

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And, of course, here we have a domestic violence case, the 404B evidence in question.

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You have the Davis case where it was held they weren't testimonial based on three facts, basically.

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First, there was an ongoing emergency

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And it was about something that was happening right then.

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Second, the purpose of the statements was to stop the ongoing emergency.

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Third, it was basically a panicky 911 call rather than a more deliberate interview setting.

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Then you have the Hammond versus Indiana case, which is to some extent a mirror image of that.

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They're about an assault, and the court emphasized this, that it already happened as opposed to was happening.

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The purpose was to get information about that past assault.

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And the victim was basically safe and separate with the police in a separate room.

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being interviewed, albeit not in a formal recorded session.

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I guess my question is this.

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Did the district court in this case specifically look at the two specific instances, the prior instances, and carefully determine which particular statements would come in, or what happened there?

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No, it didn't, Your Honor.

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And that's part of the problem here.

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It just sort of looked at the fact that part of what was going on was looking at his injuries.

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And that was, frankly, mostly the paramedics as opposed to the police, though the police asked about him a couple times.

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And that's the big problem in this case.

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That's where I think the district court got confused.

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It looked at the Latu case.

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And the Latu case is all about asking about injuries.

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There's nothing about asking about the identity.

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And in fact, one of the cases Latu cites is the Seventh Circuit Norwood case, which had the district court doing exactly what the district court should have done here.

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Norwood's.

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Which should have?

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What should have happened?

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What should have happened, Your Honor, well, first, the most important thing that should have happened is the court should have excluded under the confrontation clause all statements to the police about the identity of the assailant.

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Sometimes I was naming Mr. Riggs, sometimes it was referring to him as the roommate, sometimes it was referring to him as the boyfriend.

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Those statements should have all been excluded.

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Maybe the statements to the paramedics about how he'd been hit in the head and he had bumps on his head and that stuff, that was probably admissible.

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Though frankly, I don't think it was relevant without the statements about the assailant.

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Well, my question is I think the exact same.

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I agree with your analysis overall, but isn't it your obligation

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to object statement by statement.

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If you've got a tangle of statements to first responders that are medics that are asking, as you just described, medical, those aren't testimonial, and then you've got interspersed first responder police looking into a crime, isn't the obligation of you to object

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one by one, and then move to redact the ones that are the police response statement.

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No, I don't think so, Your Honor, for two reasons.

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First of all, you can make the objection to all the statements.

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In globo.

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Yes.

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I mean, there is an argument under Norwood.

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Norwood makes the statement that any and all statements to police officers should usually be excluded.

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So arguably under Norwood, it was proper to object to all the statements to the police.

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And, you know, if I object to

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you know, a testimony that includes four statements.

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I'm wrong on one of them.

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That doesn't eliminate my objection on the other.

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Well, I guess it goes to me.

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I'm thinking it goes, but I appreciate this dialogue.

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It goes both to preservation and to harmlessness.

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In other words, if we have a video where a lot of statements implicating rigs were made to EMTs,

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That could go to harmlessness in addition to whether or not it was your responsibility to say, those come in, we've segregated and disentangled, and these don't.

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There's both a premise and a legal that aren't satisfied here, Your Honor.

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First of all, there were no statements to the EMTs about who the assailant was.

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And second, I think under Norwood, even statements to EMTs about who the assailant was should be excluded.

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because it's not relevant to the medical treatment.

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So that's what Norwood says.

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And Norwood would happen.

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So no way harmless because nothing that went to the OK, that's a good answer.

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But then at the front end, it's just I'm beating a dead horse.

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But you don't think it's you can make it in global objection and then argue on appeal.

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You think that?

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And the government isn't saying you didn't preserve it.

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I would have thought that it would be better to object statement by statement when you've got some that are testimonial and some that aren't.

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Right, I mean, that certainly might have resulted in a more successful objection, but I don't think in terms of preserving, I have to say I object to statement Y, I object to statement B, I object to statement C, as opposed to saying I object to all of this.

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Especially when there's a arguable basis for objecting to all of it.

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Under Norwood, there's an arguable basis that nothing that's said to police should come in, because anything that said police would be recognized to be investigative.

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So I don't know if there's other questions the court has about the other assaults evidence.

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I did want to make a couple points about Smith.

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Oh no, I think we probably have a few more questions.

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All right.

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I mean, what about, again, just at the harmlessness stage, once Riggs takes the stand, I mean, I think my read is it's a pretty devastating cross of him.

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His theory about it being a seizure in the bathtub or a stranger coming in seems devastated by the forensic evidence, independent of this

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404b, if we'll call it that, and you're not challenging that it is 404b.

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So here's the legal question.

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If you make an objection and you don't prevail, and then you therefore put your client on, can we still consider your client's testimony and the cross of him in terms of assessing harmlessness of the original decision?

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Do you see my point?

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My client, of course, didn't make any testimony about the other assaults evidence.

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I know, but if his defenses are, if we decide overwhelming proof just from his cross.

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What you're saying is his testimony was so weak that it made overwhelming.

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With the forensics.

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I think all that suggests, Your Honor, is that he was the one who caused the death of Mr. Martinez.

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What's missing here

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And there's a great quote in my brief from the district court about how there's so many missing pieces here.

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There's no evidence of any murder.

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We have no idea.

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I think he said this is a circumstantial case or something of that effect.

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And he also said there's lots of missing pieces.

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There's no murder.

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The problem is what is left in doubt, regardless of Mr. Briggs's testimony, is what happened and how and with what intent.

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And that's why this other assaults evidence was so damaging.

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The prosecutor used that.

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She basically admitted no one else was there.

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We don't know what he was thinking.

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But look at this other assaults evidence to show his intent.

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And remember the standard here.

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It's harmless beyond a reasonable doubt.

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What this evidence did was it gave the jury an idea that what happened was intentional because there's lots of other possibilities.

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Did the government, I think that you've described correctly what the government said in closing.

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I couldn't find the real bottle.

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I'm not great always with the record.

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You couldn't find the government's rebuttal.

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Did they return to how the jury should use the 404 B evidence when they did rebuttal closing?

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Do you have a memory of that?

[00:08:49] Speaker 03:
No, I think it was I looked, I only I don't have a memory of it.

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I quoted from the opening argument in my brief, and I think it was in the rebuttal argument.

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I would have quoted it.

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So but they use it in their opening argument.

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And it was like basically the

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the penultimate thing, if I can use a fancy word.

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It was like the second to last thing they said in their argument.

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So in terms of the sort of primacy and recency comment, that was sort of the last thing the jury heard from them.

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Your Honor, these are some of the scenarios that were floated during the discussion of the lesser included defense instructions.

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Actually, not just that.

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The forensic anthropologist, the government called, actually conceded it was possible

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that this happened from him falling or being pushed onto something.

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The defense counsel talked about these possibilities of a fight that's really just a physical fist fight and someone falls over and hits their head.

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The district court hypothesized the possibility of what if, could the jury conclude based on the evidence that Mr. Riggs had been drinking and was severely intoxicated and something happened.

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Something happened with one of these implements that he may not have intended to cause death, but perhaps intended something else and death resulted.

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All of those possibilities were not affected at all by what the government argued was this sort of

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transparently false testimony Mr. Riggs gave.

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Mr. Riggs could have been getting up in line because he didn't want to admit accidentally causing a death.

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He could have gotten up and testified that way because he was scared and didn't want to admit negligently causing a death.

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There's lots of possibilities that would lead to a defendant testifying like that that falls short of intentional homicide.

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You remember what the government said about this evidence and its motion?

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They called it critical three different times.

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Yeah, my legal question, mine was just a legal question at the outset, which is when there's a pretrial ruling and you had an extensive hearing on this issue where you did preserve your confrontation clause argument,

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But it's adverse to the defense.

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Can an appellate court then decide harmlessness based on strategic decisions that had to have been made having lost that motion?

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You can consider Mr. Riggs's testimony in evaluating harmlessness, but that testimony does nothing to address how it may be suggested that he caused the death.

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It does nothing to suggest anything about his mens rea, and that's what they use the other assault's evidence for.

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It might be harmless.

[00:11:23] Speaker 04:
It was proper 404B then.

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Well, I think it was a close call, but I haven't raised it.

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I mean, you know, defense it.

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But the point, there's no way this is harmless beyond a reasonable doubt.

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not when the government used it that way, and not when no one was there to say what the intent was, regardless of what Mr. Riggs testified to.

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I did want to make one point.

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And of course, there's also the DNA confrontation clause evidence.

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And I would submit that's also not harmless, because that's what the government used to identify a murder weapon.

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That's what tied the blood on the pot to the injury of Mr. Martinez.

[00:12:01] Speaker 04:
But it was only victim's blood, right?

[00:12:04] Speaker 03:
Right.

[00:12:04] Speaker 04:
It didn't tie to Riggs himself.

[00:12:08] Speaker 03:
No, but it tied to Martin.

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It suggested the pot was the murder weapon, and they used that in the closing argument to point to the murder weapon.

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There was also blood on the scissors.

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That's Mr. Martinez's blood.

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So it suggested maybe they were used in the mutilation.

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So that evidence wasn't harmless either.

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And I wanted to address, if I could, what the government said in response to my supplemental authority letter, because I couldn't respond to that in writing.

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The government says there were no reports or notes by non-testifying biologists referenced by the testifying expert.

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That is simply not correct.

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Every time the expert testified about a match, he compared the sample from the piece of evidence to, quote, the known samples from both the victim and the defendant.

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And then after that, he just used shorthand referring to comparing them to Mr. Martinez or to Mr. Riggs.

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So there definitely were reports of non-testifying experts referenced.

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There were definitely these known profile reports that were referenced in that testimony.

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And that makes this case fit squarely within Smith.

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I quoted language in my supplemental authority from Smith.

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That's what made the expert testimony useful to the prosecutor.

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If you don't know who the known profiles belong to, the testimony didn't point to Mr. Martinez at all.

[00:13:29] Speaker 02:
Council, if we agreed with you on part of your arguments, specifically the confrontation issues, wouldn't it make sense to send it back to the district court to consider Smith in light of, of course, their decision?

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Wouldn't it make sense to send it back to that court?

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I don't think so, Your Honor.

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I think the record's pretty clear.

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He relied on known profiles that he didn't generate.

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Those known profiles are critical to the testimony.

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They're the only thing that, in the words of Smith, makes it useful.

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In the words of Smith, again, that testimony would have, quote, counted for nothing, unquote, if those known profiles weren't correctly attributed to Mr. Martinez and Mr. Riggs.

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for the district court to resolve.

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It's there.

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It was wrong.

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They got to call those underlying people.

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They either got to have the person they called do the known profiles and the unknown profiles that he compares, or have to call the person, as they did in Williams, interestingly, who did the known profile, to establish that foundation, and then the person who did the unknown profiles.

[00:14:43] Speaker 03:
Plus, I go back to the other assaults evidence, Your Honor.

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This really is just, it's like Hammond, not like Davis.

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and the other assaults evidence shouldn't have come in, and that's what the government had to show the mens rea.

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It's maybe not what the government needed to show Mr. Riggs caused the death, but it's what the government needed to show the mens rea he had when he caused the death.

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So that can't be harmless.

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And remember the standard here.

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The standard is harmless beyond a reasonable doubt.

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The question in the words of the Ninth Circuit is whether it significantly alters the evidentiary picture.

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It certainly significantly altered the evidentiary picture to have these other assaults in there and to give the government a murder weapon to point to.

[00:15:30] Speaker 04:
Both those prior incidents were just bad acts.

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They never led to prosecutions.

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Correct.

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And yet there were videos of both still available.

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It's sort of remarkable.

[00:15:39] Speaker 04:
Well, it was body cams, because the Albuquerque police... They kept the body cams from cases that weren't even prosecuted?

[00:15:45] Speaker 03:
I don't know about police procedure, Your Honor, but it was, they were less than five years.

[00:15:50] Speaker 03:
I think they were five years, I think less than five years old.

[00:15:53] Speaker 03:
It wasn't like 20 or 30 years ago.

[00:15:56] Speaker 03:
I have about four minutes left, which I'll save for rebuttal unless the court has other questions.

[00:16:03] Speaker 02:
We'll preserve your time.

[00:16:04] Speaker 03:
Thank you, Your Honor.

[00:16:26] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:16:29] Speaker 00:
My name is Caitlin Noel, and I represent the United States.

[00:16:33] Speaker 00:
I'll start with the confrontation clause issues.

[00:16:35] Speaker 00:
That's clearly the Court's interest here.

[00:16:40] Speaker 00:
But I do, before I turn to the merits of those arguments, I do want to focus briefly on the harmlessness issue and the overwhelming evidence that was presented in this case.

[00:16:55] Speaker 04:
You only gave a paragraph to harmlessness in your brief.

[00:16:58] Speaker 04:
You cited one case.

[00:17:00] Speaker 04:
That wasn't very helpful.

[00:17:01] Speaker 00:
Well, I will go over some of just the categories of evidence here.

[00:17:06] Speaker 04:
I know, but they're not in the brief.

[00:17:08] Speaker 04:
So it just makes it difficult.

[00:17:10] Speaker 04:
Of course, we read the whole trial record, but Benamore is the case you cited.

[00:17:14] Speaker 04:
And they are the defendant admitted to the gun.

[00:17:16] Speaker 04:
So the statement of the landlord to the police looks pretty obviously harmless.

[00:17:20] Speaker 04:
That's not analogous.

[00:17:22] Speaker 04:
So what's your best case for harmlessness of this type of 404B evidence?

[00:17:28] Speaker 00:
Your honor, I apologize.

[00:17:29] Speaker 00:
I don't have a specific case with because you agree.

[00:17:32] Speaker 04:
I mean, I kept thinking it's literary.

[00:17:34] Speaker 04:
I'm not good for you to say penultimate sounds so.

[00:17:36] Speaker 04:
But this does sound sort of like Hamlet's ghost.

[00:17:39] Speaker 04:
This is the guy coming from the grave saying Riggs is the one who's beating me up.

[00:17:43] Speaker 04:
It's it's hard to imagine it being constitutionally harmless.

[00:17:48] Speaker 00:
Well, just in terms of the issue of intent, which as far as the 404B evidence is really what that was relevant for, I just want to point out that the nature of the injuries themselves, the extensiveness of the really brutal wounds here,

[00:18:11] Speaker 00:
combined with the apparent efforts at concealment that Mr. Riggs took both in terms of what appears to have been cleaning up the scene and then also the what your honor noted was problematic testimony at trial and finally that Mr. Riggs was aware of the defendant's

[00:18:35] Speaker 00:
Brain injury that he had suffered he both talked about it at the scene and also had just been at a medical appointment with If we're jumping to harmlessness, which is fine to do Do you disagree with his characterization of the government's closing that it actually did draw attention to this for 4b it mentioned it your honor, but This was between the government's

[00:18:59] Speaker 00:
Close and rebuttal close covers about 40 pages of transcript.

[00:19:06] Speaker 00:
And there are just two paragraphs in total that reference the 404B.

[00:19:12] Speaker 04:
None in the rebuttal closing?

[00:19:13] Speaker 00:
None in the rebuttal closing.

[00:19:15] Speaker 00:
I was not, I did just take another look to check and I didn't see anything.

[00:19:20] Speaker 04:
Oh, so you have, it is in the record, the rebuttal closing.

[00:19:23] Speaker 00:
The trial closing is in the record, and Your Honor, the supplemental excerpts of record included the full trial transcript, in part because in light of my harmlessness argument, it feels like everything is fair game, and so that is in the supplemental excerpts of record.

[00:19:48] Speaker 00:
But there was one paragraph where the government noted

[00:19:53] Speaker 00:
for for be evidence is just for a limited purpose and then there's just one paragraph a few lines of text that describe the evidence so it is mentioned but i don't think that this was sort of the big deal uh... that it's being made out to be and i'll turn having having covered

[00:20:12] Speaker 00:
The harmlessness point, I do want to talk some about the merits of the confrontation clause issue here.

[00:20:21] Speaker 04:
So you are just our last question on homelessness.

[00:20:23] Speaker 04:
You are not arguing, and you didn't in the brief, say, well, the statements to the EMT and the 404Bs came in anyway, and that comprehended incriminating evidence.

[00:20:33] Speaker 04:
The jury would have heard it anyway.

[00:20:34] Speaker 04:
You haven't made that argument.

[00:20:36] Speaker 00:
Your honor, I do believe that I pointed out in my answering brief that the statements to the EMTs combined with the fact that one of the police officers did testify that they then encountered Mr. Riggs at the location, that based on that information,

[00:20:58] Speaker 00:
that that would contribute to the harmlessness because this was information from which the jury could infer that that was connected.

[00:21:08] Speaker 00:
On the substance though, obviously Davis and the companion case Hammond are important cases here, but I also think that the subsequent case of Michigan.

[00:21:21] Speaker 02:
Well, why isn't this closer to Hammond?

[00:21:23] Speaker 00:
Well, for a few reasons.

[00:21:27] Speaker 00:
Okay.

[00:21:27] Speaker 00:
I think that this is in fact closer to Davis.

[00:21:30] Speaker 00:
So looking at the facts in Hammond, police officers show up to the house, the wife is sitting outside, says everything's fine, no apparent injuries.

[00:21:41] Speaker 02:
When officers speak to- But I think the facts indicate that she was distraught, I think, or crying or something to that effect.

[00:21:49] Speaker 00:
I believe the case describes her as looking somewhat frightened.

[00:21:53] Speaker 00:
But when the police go inside, she doesn't have any apparent injuries, which I do think is significant.

[00:22:00] Speaker 00:
In particular, it's significant because with the later decision in Bryant, the court notes that the existence of a medical emergency

[00:22:09] Speaker 00:
is part of the evaluation, the analysis of whether there is an ongoing emergency.

[00:22:18] Speaker 00:
So there do not appear to be any injuries to the wife.

[00:22:21] Speaker 00:
When the police speak with her at the time that they're talking, they already know

[00:22:25] Speaker 00:
who is the purported assailant, the husband, and they have one officer who is with the husband being kept separate from the wife.

[00:22:37] Speaker 00:
So the person, the assailant is already

[00:22:41] Speaker 00:
if not in custody, already under police control at that time.

[00:22:45] Speaker 02:
I guess here's one of the biggest problems I have here, that our case law, including those that you've listed, talk about a district court going through very carefully each individual statement that is admitted.

[00:23:01] Speaker 02:
And here, there are two incidents.

[00:23:03] Speaker 02:
There doesn't seem to be that level of

[00:23:07] Speaker 02:
of preciseness that is necessary.

[00:23:10] Speaker 02:
Some of these statements you might very well be admitted under the exceptions that exist and under our case law, even the case law that the judge cited.

[00:23:21] Speaker 02:
Isn't that the fundamental downfall of your position that the judge really didn't do that precise as necessary and that's dictated under our case law?

[00:23:33] Speaker 00:
Well, I think the problem there lies with the defendant's failure to identify any specific statements that it was objecting to.

[00:23:40] Speaker 00:
So the district court here really didn't have cause to sort of go through one step at a time.

[00:23:48] Speaker 00:
It did.

[00:23:49] Speaker 02:
But I did.

[00:23:50] Speaker 02:
Yeah, I thought they filed a confrontation motion, didn't they?

[00:23:55] Speaker 00:
They did, Your Honor.

[00:23:57] Speaker 00:
I don't recall it.

[00:23:58] Speaker 02:
I guess my question is, which I believe was Judge's question, which is, do they have to go through every single time, not only have the motion, but also later during the trial, imagine how silly that would be if you were in trial and you'd have to say, no, no, no.

[00:24:20] Speaker 02:
That I'm objecting to and then sit down and wait for another question.

[00:24:23] Speaker 02:
Oh, no.

[00:24:23] Speaker 02:
No, I'm objecting to that Is that what you think the law should or is that we require of our judges?

[00:24:32] Speaker 00:
No, what I what I do think is that if there is a

[00:24:36] Speaker 00:
an expectation that the district court will do sort of a line-by-line analysis, that that analysis would be in response to a defendant saying, this particular statement is problematic, and then the district court evaluating that in response to it.

[00:24:54] Speaker 02:
You agree that the judge didn't do that here?

[00:24:58] Speaker 00:
I do agree with that, Your Honor.

[00:24:59] Speaker 02:
Okay.

[00:25:00] Speaker 00:
I do factually I just want to point out sort of going back to this idea of ongoing emergency and when the particular statements, because it sounds like the sort of general statements, the medical statements to the EMTs really isn't an issue.

[00:25:14] Speaker 00:
The issue is the identification of Mr. Riggs.

[00:25:19] Speaker 02:
Well, it may not be an issue, and under our case law, in fact, the case that the judge cited, those might very well come in, but we don't know that, right?

[00:25:34] Speaker 02:
Because the judge didn't do that, didn't go through that analysis.

[00:25:39] Speaker 02:
That is necessary to determine which statements come in and which statements stay out.

[00:25:46] Speaker 00:
Again, and I agree that that particular analysis line by line didn't happen here.

[00:25:52] Speaker 02:
So then isn't that a basis for us just on that to send it back to have that analysis to determine what should have come in?

[00:26:04] Speaker 00:
I don't think so because I think that this court can look at all of the statements and determine that none of them came in in error.

[00:26:13] Speaker 00:
talking about the specific identifying statements in both situations.

[00:26:18] Speaker 00:
And again, I want to turn back to the Bryant case because in the Bryant case, police came upon someone who had been shot.

[00:26:27] Speaker 00:
It didn't seem like there was, there was what they knew or what the victim told them was that it had happened somewhere else at a house.

[00:26:39] Speaker 00:
So it wasn't a situation where the,

[00:26:42] Speaker 00:
They were sort of coming across a fight that was going on at that moment.

[00:26:47] Speaker 00:
The shooting had already occurred.

[00:26:50] Speaker 00:
The police officers asked, what happened?

[00:26:54] Speaker 00:
Who did it?

[00:26:55] Speaker 00:
That and the victim responded.

[00:26:59] Speaker 00:
And the Supreme Court in Bryant held that in that situation where there is this ongoing emergency, you have someone who's injured, who needs medical assistance,

[00:27:12] Speaker 00:
you have an assailant who is not identified and who is at large, that when the police officers are responding and they're asking sort of those very initial questions just to figure out sort of what is the situation here?

[00:27:27] Speaker 00:
What is the risk?

[00:27:28] Speaker 01:
What you're saying basically is that this is not like Hammond because we're not looking to whether or not

[00:27:35] Speaker 01:
the person making the statement, so for in this case, Mr. Martinez and also the wife on the porch in Hammond, they are safe.

[00:27:43] Speaker 01:
Martinez was alone in a separate space with the officers, which is why I think this looks a lot more like Hammond.

[00:27:51] Speaker 01:
But you're saying, don't look at that.

[00:27:52] Speaker 01:
What we should be looking at is whether the assailant was in fact in custody or whether or not there needed to be efforts to

[00:28:02] Speaker 01:
apprehend that individual, and that's what makes it an ongoing emergency.

[00:28:06] Speaker 00:
I do think that that is part of what makes this an ongoing emergency, and I think that that makes this similar to Brian.

[00:28:12] Speaker 00:
Aside from the fact that the injuries, he is not shot in the abdomen, we have the police officers saying that they observed visible injuries on him.

[00:28:24] Speaker 00:
If you look at the video, and the body cam videos were transmitted to the court,

[00:28:31] Speaker 00:
And it's clear from the record that the district court also took the time to view all of these videos in the course of the hearing on admissibility.

[00:28:40] Speaker 00:
But looking at those videos, the police officer, and I believe this is in the March incident in particular,

[00:28:48] Speaker 00:
One officer is sort of asking initial questions.

[00:28:51] Speaker 00:
The other one, you hear him on his radio, and he testified to this, like calling in to say, step up, we need the ambulance to get here more quickly, because as they testified, they really were concerned about his medical condition.

[00:29:03] Speaker 01:
But there was no threat to Mr. Martinez by Mr. Riggs at that point, right?

[00:29:07] Speaker 01:
Because he's in police custody and he's safe, there's no actual threat to Mr. Martinez on either the March 10th or November 14th incidents, right?

[00:29:16] Speaker 00:
In that particular moment, I would agree with that.

[00:29:19] Speaker 00:
I think Bryant also talks about the threat, any possible threat to the public or to the police officers who are responding.

[00:29:28] Speaker 02:
But it was clear that these were domestic incidents, wouldn't you agree?

[00:29:36] Speaker 00:
Once Mr. Riggs said that, yes.

[00:29:38] Speaker 02:
This wasn't a person going out there and starting beating up people on the street, was it?

[00:29:45] Speaker 02:
No, this wasn't a person who had a gun was shooting, you know, all over the place.

[00:29:49] Speaker 02:
Correct.

[00:29:50] Speaker 00:
That's correct.

[00:29:51] Speaker 02:
This was a domestic, this was a domestic dispute.

[00:29:53] Speaker 02:
Correct.

[00:29:54] Speaker 02:
It was, but it was clear at the beginning, wasn't it?

[00:29:58] Speaker 00:
I think it was clear.

[00:30:00] Speaker 00:
Early on in the November incident, this is the one in the hotel lobby.

[00:30:05] Speaker 00:
This actually, the identification happened very quickly in that incident.

[00:30:10] Speaker 00:
And I will note that that actually wasn't even in response to a police officer asking Mr. Riggs who did this instead.

[00:30:17] Speaker 00:
He just said, wow, it looks like he really punched you right in the face.

[00:30:21] Speaker 02:
Well, I'm only responding, and I only ask you those questions because you are the one that's saying, well, no, no, no, it's protection of the public.

[00:30:26] Speaker 02:
So I guess I'm trying to understand what you mean.

[00:30:29] Speaker 00:
Well, I think first of all, I don't think it can be said that because something starts out as a domestic violence incident, that that means that everyone else is safe.

[00:30:38] Speaker 00:
I think it's well known that in responding to domestic violence incidents, there often are safety concerns for law enforcement.

[00:30:48] Speaker 00:
So I think the fact that just understanding who someone is that did this and where are they right now is relevant to the officer safety.

[00:31:02] Speaker 02:
Other questions that were being asked by the officers were things like, well, I need to get this down for my report.

[00:31:08] Speaker 02:
I need to do this for my investigation.

[00:31:13] Speaker 02:
those seem to be questions going towards an investigation, not an emergent situation for the purposes that you're arguing for, for the public, which are well-meaning, right?

[00:31:26] Speaker 02:
But is that what was happening here?

[00:31:28] Speaker 02:
And do those questions really take us to that point?

[00:31:33] Speaker 00:
Well, and I suppose it

[00:31:36] Speaker 00:
Candidly, this kind of goes back to your prior point about going through the record one step at a time, but I think it also, in that sense... Doesn't it make sense to send it back for that reason alone?

[00:31:51] Speaker 00:
I think that that could be one reasonable outcome here.

[00:31:55] Speaker 00:
But I don't feel like I'm ready to concede this point, because I think given the rule of law then, though in other words, what's the limiting principle?

[00:32:03] Speaker 04:
Because police respond to 9-11 domestic disturbance all the time.

[00:32:06] Speaker 04:
So your rule of law, you ask us to write, Ninth Circuit published opinion, is that whenever police respond and victims and bystanders incriminate somebody, there's no right to confront and cross when finished sentence.

[00:32:21] Speaker 04:
I think that what we still are looking at the primary purpose test so I don't think that when police respond the purpose is they're responding to a 9-eleven call Presumably the possibility of a crime and they're trying to find the facts pertaining to the crime.

[00:32:34] Speaker 04:
It's not testimonial Because what how would we write it so that it wouldn't?

[00:32:39] Speaker 04:
Basically allow police to testify without cross-examination of any incriminating testimony be a massive ruling unless you can give a limiting principle What's the limiting principle?

[00:32:49] Speaker 01:
I think the limiting principle is the principle that's already established in these Supreme Court cases that once the emergency... I think the problem with what you're about to say, which is we retain the ongoing emergency rule, but we interpret it so that it is much broader.

[00:33:04] Speaker 01:
And I think Judge Higginson's question goes to... It doesn't make sense to say there's a limiting principle only

[00:33:13] Speaker 01:
you know, that's farcical.

[00:33:15] Speaker 01:
Like, if an ongoing emergency really means something more than an ongoing emergency, what is, and you're asking us to interpret the existing principle to be broader than what I think the facts of these other cases suggest.

[00:33:31] Speaker 01:
How do we do that in this case and still preserve the holding of the other cases?

[00:33:40] Speaker 00:
I think that as to

[00:33:42] Speaker 00:
the application of the ongoing emergency doctrine in this case, the court could look at the totality of the circumstances and determine that at some point maybe the ongoing emergency had been abated and things had switched over and we were now in a different primary purpose of investigation.

[00:34:06] Speaker 00:
But the statements incriminating the statements identifying Mr. Riggs as the assailant came in.

[00:34:14] Speaker 00:
right at the beginnings of these conversations where there was still like, we have no white, the police are there and they're just, what's going on?

[00:34:23] Speaker 00:
What's the situation on the ground?

[00:34:24] Speaker 00:
What do we need to know about?

[00:34:26] Speaker 02:
And I think you're right about that.

[00:34:30] Speaker 02:
I think there are parts of these statements that perhaps should be rightly admitted, but because we don't have the methodical, careful,

[00:34:40] Speaker 02:
description of which statements are admitted and which should not be admitted, I think our hands might be tied, don't you think?

[00:34:52] Speaker 00:
And again, I think that that could be one outcome that the panel could reach.

[00:34:58] Speaker 00:
I think there is another way to look at those initial portions of these conversations, these interactions with the police,

[00:35:09] Speaker 00:
were an ongoing emergency, that was the primary purpose, so they aren't problematic.

[00:35:15] Speaker 00:
The rest of it, maybe it shouldn't have come in, but at that point, it's harmless because there isn't a problem as to the very beginning of those interactions where there is still an emergency.

[00:35:30] Speaker 04:
He's opposing counsel Wright that he never said the name Riggs to the EMTs.

[00:35:34] Speaker 00:
I believe that that is correct, Your Honor.

[00:35:37] Speaker 00:
I was just re-watching the videos this morning.

[00:35:43] Speaker 00:
You know, they're very, you can just, if you look at the very first videos, there's sort of three videos per incident, and if you look at the very first ones, the identification of Mr. Riggs happens right at the beginning.

[00:35:57] Speaker 00:
In the November one, the officer just says something like, really got you right, your face looks really bad, really got you right in the face, is it he or she?

[00:36:06] Speaker 00:
And then Mr. Martinez, the victim, just volunteers, he.

[00:36:12] Speaker 00:
Brian Riggs, like he just kind of spits that out.

[00:36:15] Speaker 00:
There isn't like a formal questioning going on here.

[00:36:18] Speaker 00:
This is the, you know, the police officer just sort of, what happened?

[00:36:22] Speaker 00:
You look hurt.

[00:36:24] Speaker 02:
Well, it goes to the ongoing emergency.

[00:36:25] Speaker 02:
And then at that point, they knew that it was a domestic dispute and it knew, they knew that it happened prior to that.

[00:36:32] Speaker 02:
They said, tell me what happened as a result of that.

[00:36:36] Speaker 02:
That seems more,

[00:36:37] Speaker 02:
of sort of an investigation, but I see your time is up.

[00:36:41] Speaker 02:
Counsel, I don't know if there are any questions.

[00:36:43] Speaker 02:
Any additional questions?

[00:36:44] Speaker 02:
All right.

[00:36:44] Speaker 02:
Thank you.

[00:36:44] Speaker 00:
Thank you.

[00:36:52] Speaker 03:
Maybe to start off with that last point first, Your Honor, I respectfully read the record a little different.

[00:36:57] Speaker 03:
I laid out the timing of things, I think pretty completely in my reply brief in footnote one.

[00:37:05] Speaker 03:
that last point about the he or she question that's actually a minute into that meeting and at the very beginning of these meetings the officers are things saying things like for our investigation or for our reports things like that so frankly it seems pretty clear to me that from the very beginning

[00:37:24] Speaker 03:
This is an investigation with a few side tangents into asking about the injuries.

[00:37:31] Speaker 03:
But those are separate from questions about the assailant.

[00:37:35] Speaker 02:
But they are asking those questions.

[00:37:36] Speaker 02:
They are.

[00:37:37] Speaker 02:
I mean, the officers are asking, do you need to go to the hospital?

[00:37:41] Speaker 02:
Do you need medical attention?

[00:37:43] Speaker 02:
And then to some of those responses, I think he might have said, yes, I was punched by xed person.

[00:37:52] Speaker 03:
I guess I don't think so, Your Honor.

[00:37:54] Speaker 03:
The way I laid it out in my reply brief, and I think I got it pretty accurate, they're more segregated than that.

[00:37:59] Speaker 03:
The questions about, do you need to go to the hospital?

[00:38:01] Speaker 03:
Oh, what are these bumps on your heads?

[00:38:05] Speaker 03:
Those are separate from questions about what happened, which is more focused for investigation.

[00:38:13] Speaker 03:
The other point I wanted to make was there was this discussion about the defendant or the assaulter still being sort of out there, and maybe that triggers Brian.

[00:38:24] Speaker 03:
I don't think it comes close to that.

[00:38:25] Speaker 03:
If you look at Hammond, it was true that the defendant in Hammond was in another room with the police, but that's only in the facts.

[00:38:33] Speaker 03:
If you look at their analysis and the reasons for their holding, what they talked about is the fact that the victim was safe with the police.

[00:38:42] Speaker 03:
And that was, of course, true here.

[00:38:43] Speaker 03:
It was the victim being with the police, not where the defendant was that mattered, and the domestic violence.

[00:38:49] Speaker 03:
Now, Bryant was different because Bryant wasn't a domestic violence with what the Bryant Court characterized as a narrower focus of victims.

[00:38:58] Speaker 03:
You had a man, it's different in two really key respects.

[00:39:01] Speaker 03:
You had a man who was out there, apparently willing to use a gun very readily, going around with a gun.

[00:39:08] Speaker 03:
You didn't have anything like that here.

[00:39:09] Speaker 03:
You also, in that case, the victim was basically in a parking lot, lying against the car, bleeding to death, and different police officers are running up to him at different times, sort of asking what happened, you know, where's the guy with the gun and that kind of thing.

[00:39:23] Speaker 03:
That doesn't approach our case here.

[00:39:25] Speaker 03:
Here what you have is they arrived at the hotel.

[00:39:29] Speaker 03:
Mr. Martinez was there.

[00:39:31] Speaker 03:
They knew he was the one who called 911.

[00:39:34] Speaker 03:
They knew they had to investigate and write a report.

[00:39:37] Speaker 03:
They took him to another location, in one case the hotel lobby, in one case the parking lot outside, and in the words of the officer when he testified, for our investigation, we interviewed him.

[00:39:49] Speaker 03:
And what they said to him during the questioning was, we gotta write a report, et cetera, et cetera.

[00:39:54] Speaker 03:
I agree that there were sort of inside the bumps, then they asked about how he got hurt and stuff like that,

[00:40:03] Speaker 03:
But the questions really are pretty segregated between who did this and do you need medical care?

[00:40:11] Speaker 03:
And frankly, I mean, I guess the court could send that back, but it is de novo review.

[00:40:16] Speaker 03:
So I think your honors can do that as well.

[00:40:23] Speaker 03:
Those were the main points I had, I think, unless your honors had other questions.

[00:40:27] Speaker 02:
All right, thank you.

[00:40:29] Speaker 02:
Thank you.

[00:40:30] Speaker 02:
I want to thank council for their argument today.

[00:40:33] Speaker 02:
This matter will stand submitted.

[00:40:36] Speaker 02:
And I believe that concludes our day.

[00:40:40] Speaker 02:
Thank you.