State v. Estell

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NOT DESIGNATED FOR PUBLICATION

No. 114,909

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

DONALD W. ESTELL, JR.,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; TIMOTHY L. DUPREE, judge. Opinion filed January 27,
2017. Affirmed.

Ian D. Tomasic and Ethan Zipf-Sigler, assistant district attorneys, Jerome A. Gorman, district
attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

Per Curiam: The State appeals the district court's dismissal of the aggravated
battery charge against Donald W. Estell, Jr., for insufficient evidence offered at the
preliminary hearing. The only issue the State has briefed on appeal is that the district
court erred in not admitting the State's evidence of a 911 call made by Erica Rippetoe, the
alleged victim of the aggravated battery. We believe this court lacks jurisdiction to hear
this appeal because of the procedural way the State has chosen to file the appeal and
frame the issues. But even if we have jurisdiction to hear the State's appeal, we conclude
that the district court did not err in denying the admission of the 911 call.
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FACTUAL AND PROCEDURAL BACKGROUND

Estell was charged with aggravated battery against Rippetoe stemming from
events that occurred on July 15, 2015, in Kansas City, Kansas. Soon thereafter, on July
20, 2015, Rippetoe was found murdered. Much of the following account of what
happened on July 15, 2015, comes from Rippetoe's friend, Angela Findley, through her
interview with the police and her testimony at the preliminary hearing.

In the afternoon of July 15, 2015, Rippetoe was with Findley. At some point in the
afternoon, Estell called Rippetoe asking for a ride from work. Rippetoe drove to pick up
Estell, and Findley accompanied her along with Rippetoe's infant child. After Rippetoe
picked up Estell from work, Estell drove the car, Rippetoe was riding in the front
passenger seat, and Findley was in the backseat with Rippetoe's infant child. The four
headed to Findley's apartment. At some point during the drive to Findley's apartment,
Estell and Rippetoe began to argue.

The argument escalated and became physical when the group arrived in the
parking lot at Findley's apartment. Rippetoe tried to get away by exiting the car and going
into Findley's apartment. However, Estell tried to force Rippetoe back into the car.
During the confrontation Estell hit and bit Rippetoe and, at one point, used the car door to
strike her head. Rippetoe asked Findley to remove her infant from the car. As Findley
grabbed the infant, Rippetoe broke away and ran from the car. Estell began to argue with
Findley over the infant and eventually pulled the infant from Findley. Estell, who is not
the infant's biological father, got into the car with the infant and left.

After Estell left, Findley found Rippetoe hiding in the parking lot behind her
apartment complex and brought Rippetoe into her apartment. Rippetoe was hysterical
following the confrontation and had visible injuries. Findley observed "a bite mark" on
Rippetoe's arm and stated Rippetoe "was all red."
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At some point, after dark, Estell returned to Findley's apartment. Rippetoe
immediately began asking where her infant was located, and Estell indicated the infant
was inside the car. Estell then began to force Rippetoe toward the car against Rippetoe's
will. Rippetoe shouted for Findley to go get her infant. Findley rushed toward the car and
realized the infant was not inside. By this time, Estell had Rippetoe at the car. A struggle
ensued in which Estell tried to force Rippetoe into the car, Rippetoe resisted, and Findley
did all she could to assist Rippetoe in staying out of the car. Estell eventually got
Rippetoe in the backseat and drove away in a rush with the tires screeching. Findley was
able to get the license plate number and called 911 to report the incident. Later that night,
Findley spoke with Rippetoe on the phone. Rippetoe told Findley that Estell had thrown
her from the car. Findley instructed Rippetoe to phone the police.

Rippetoe's 911 call

Rippetoe's 911 call began with the operator attempting to determine her location.
Rippetoe told the operator that Estell had beaten her and had taken her child to his family
members. Rippetoe believed the incident took place "3 hours ago." When the operator
asked where Estell could be found, Rippetoe stated, "He just took off and left me after he
got through beating me. I got marks, he done bit me, done bloodied my nose. I didn't try
to wipe the blood [undiscernible] to leave evidence. I didn't do all of that."

When asked if she needed medical attention, Rippetoe said, "I think I might this
time." However, she eventually turned down an ambulance, stating, "I don't like the
attention. I'm not used to that. I don't like that." Rippetoe further explained her injuries
saying she had "bite marks on me, my nose has been bloodied, I've been choked off."
Throughout the phone call, Rippetoe was crying and seemed extremely agitated.



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Police investigation

Following the 911 call, Officer Lauren Hopper and other police officers located
Rippetoe around 9 p.m. When officers arrived at the scene, they observed Rippetoe with
no shoes on and she looked intoxicated. Rippetoe had visible injuries, including a bloody
nose, scratches on her arm, and visible bite marks on her thighs. Rippetoe told officers
she had been in an argument with Estell and he was responsible for her injuries. During
the interview, Rippetoe became upset with the officers and cursed at them. She refused
treatment for her injuries and left the scene abruptly.

On July 20, 2015, Detective Randolph Slater interviewed Estell. The interview
was in regard to both the battery of Rippetoe and her subsequent homicide. Estell
admitted to biting Rippetoe after she became hostile in the car on July 15, 2015. Estell
also stated that Rippetoe had hit him. The thrust of Estell's statement was that Rippetoe
was the aggressor in the incident on July 15, 2015, and Estell was acting in self-defense.

Criminal prosecution

On July 22, 2015, the State charged Estell with aggravated battery against
Rippetoe. Prior to the preliminary hearing, the State filed a motion to admit Rippetoe's
911 call. In the motion, the State pointed out that Rippetoe was not available to testify
because she was deceased. The State claimed the 911 call was not testimonial in nature
and, as such, did not violate Estell's confrontation rights. The State also alleged the 911
call fit "under the present sense impression, excited utterance, and statements of physical
condition of declarant exceptions to the hearsay rule."

On November 5, 2015, Estell filed a memorandum in opposition to the motion to
admit the 911 call. Estell maintained that the 911 phone call was testimonial in nature and
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the admission of the evidence violated his confrontation rights. Estell also asserted that
the 911 call was "inadmissible under any hearsay exception."

On November 13, 2016, the district court held a preliminary hearing. The hearing
began with the court hearing oral arguments on the State's motion to admit the 911 call.
After hearing the arguments and listening to the 911 recording, the district court found
the statements by Rippetoe on the 911 call were testimonial in nature and denied the
State's motion to admit the evidence. Specifically, the district court found that at the time
of the call there was no ongoing emergency related to battery or kidnapping. The district
court also found that during the call Rippetoe was attempting to assist in the prosecution
of Estell by mentioning "evidence" and seemingly only wanting medical attention in an
attempt to assist the prosecution. In response to the district court's ruling, the prosecutor
stated that "the State objects to the court's ruling and just preserves this issue for appeal to
the extent that that's possible."

The State then began its direct examination of Officer Hopper who had contacted
Rippetoe in response to her 911 call. During the interview, Hopper noted that Rippetoe
was "very intoxicated . . . and very upset." Hopper observed bite marks on Rippetoe's
right and left thigh, "red marks to both sides of her neck and a small amount of blood to
the left side of her neck." Hopper stated Rippetoe refused treatment for her injuries,
cursed at the officers, and left the scene.

The State next called Findley to the stand and she testified about the incident on
July 15, 2015, consistent with the account set forth above. She further testified that
following the incident on July 15, 2015, Rippetoe "went into hiding for a couple days."
Findley was shown photos of Rippetoe taken after the incident, and Findley stated that
two of the photos looked like the bite marks on Rippetoe that Findley had observed
within a week of the incident. The State admitted those two photos into evidence.

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At that point in the hearing, the district court announced a recess so that the parties
could research the issue of whether Rippetoe's statements to Findley would be admissible
in the hearing under any exception to the hearsay rule. The district court ordered that the
preliminary hearing be bifurcated to allow the State the chance to file a motion regarding
the matter and to give Estell time to respond. The district court ordered Findley to return
for the second portion of the preliminary hearing scheduled for November 24, 2015.

When the preliminary hearing resumed on November 24, 2015, the district court
first considered the State's motion to admit Rippetoe's hearsay statements to Findley. The
district court heard arguments from both sides and decided that Rippetoe's statements to
Findley were testimonial and denied the State's motion. The district court further found
that even if the statements were nontestimonial, the court would still exclude them as
hearsay because it would not find the statements "reliable or made in good faith."

The State's final witness at the preliminary hearing was Slater who testified about
his interview with Estell on July 20, 2015. Slater indicated that although Estell admitted
that he hit and bit Rippetoe, he only took these actions in self-defense.

After hearing all the State's evidence, the district court ruled that there was
insufficient evidence to establish probable cause and dismissed the aggravated battery
charge against Estell without prejudice. An order of dismissal was filed by the district
court on November 30, 2015. The State filed a notice of appeal on December 2, 2015,
appealing "the dismissal of this case and all adverse rulings."

JURISDICTION

The State's brief, citing K.S.A. 2015 Supp. 22-3602(b)(1), asserts that it has the
"right to appeal an order dismissing a complaint, information or indictment." The State
points out that the district court dismissed the aggravated battery charge against Estell for
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insufficient evidence after the preliminary hearing, making an appeal on this ground
proper. In the alternative, the State argues that this court "has jurisdiction over a question
reserved" pursuant to K.S.A. 2015 Supp. 22-3602(b)(3).

Estell points out that although the State would have grounds to appeal from the
dismissal of a complaint against Estell, the State has failed to argue in its brief that there
was sufficient evidence at the preliminary hearing to establish probable cause for the
aggravated battery charge and, as such, the State has abandoned the argument on appeal.
Estell also asserts that the State cannot bring an appeal on a question reserved because the
issue in this case fails to "present a question of statewide importance."

Whether jurisdiction exists is a question of law over which an appellate court's
scope of review is unlimited. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014).
The right to appeal is entirely statutory and is not contained in the United States or
Kansas Constitution. Subject to certain exceptions, Kansas appellate courts have
jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by
statutes. State v. Berreth, 294 Kan. 98, 110, 273 P.3d 752 (2012).

The State is correct in asserting that pursuant to K.S.A. 2015 Supp. 22-3602(b)(1),
the prosecution has the right to appeal "from an order dismissing a complaint,
information or indictment." The problem in this case, however, is that although this court
has jurisdiction to consider an appeal of the district court's order dismissing the
aggravated battery charge against Estell based on insufficient evidence at the preliminary
hearing to establish probable cause, the State has not actually briefed this issue. The only
issue briefed by the State is that the district court erred in not admitting the State's
evidence of Rippetoe's 911 call. The State has failed to challenge the district court's
exclusion of Rippetoe's statements to Findley based on hearsay. Moreover, the State fails
to make any argument as to whether the evidence presented at the preliminary hearing,
with or without the 911 call, was sufficient to bind Estell over for trial.
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An issue not briefed by the appellant is deemed waived or abandoned. See State v.
Willliams, 303 Kan. 750, 758, 368 P.3d 1065 (2016). A point raised incidentally in a brief
and not argued therein is also deemed abandoned. State v. Sprague, 303 Kan. 418, 425,
362 P.3d 828 (2015). Thus, although this court would have jurisdiction under K.S.A.
2015 Supp. 22-3602(b)(1) to consider an appeal of the district court's order dismissing a
complaint, information, or indictment, the State has failed to brief the issue of whether
the district court erred by dismissing the aggravated battery charge against Estell for
insufficient evidence; thus, the State has abandoned this issue on appeal.

Likewise, we reject the State's attempt to appeal upon a question reserved by the
prosecution pursuant to K.S.A. 2015 Supp. 22-3602(b)(3). In order for the State to appeal
from a question reserved, the question must present an issue of statewide importance
relating "to the correct and uniform administration of criminal law." Berreth, 294 Kan. at
121. A question reserved is not an avenue to determine if the district court committed an
error. 294 Kan. at 121. Instead, a question reserved normally presupposes the current case
has concluded yet resolves an issue that "is necessary for the proper disposition of future
cases." State v. Roderick, 259 Kan. 107, Syl. ¶ 1, 911 P.2d 159 (1996). A successful
appeal of "a question reserved does not affect the defendant" because the decision
"typically operates only prospectively." Berreth, 294 Kan. at 113.

Also, the resolution of a "question reserved must provide helpful precedent." State
v. Barlow, 303 Kan. 804, 811, 368 P.3d 331 (2016). No helpful precedent would be
established through a decision in this case. Although the State maintains there is no
caselaw in Kansas regarding whether statements made during a 911 call are testimonial in
nature, courts need not look any further than Davis v. Washington, 547 U.S. 813, 126 S.
Ct. 2266, 165 L. Ed. 2d 224 (2006), to find an extensive analysis of the issue. Moreover,
the Kansas Supreme Court has established a four-factor test to determine whether out-of-
court statements in general are testimonial in nature. See State v. Brown, 285 Kan. 261,
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291, 173 P.3d 612 (2007). Thus, accepting the State's appeal in this case on a question
reserved is unnecessary to establish precedent that may be useful in future cases.

In sum, although we would have jurisdiction to consider the State's appeal from
the dismissal of the complaint against Estell under K.S.A. 2015 Supp. 22-3602(b)(1), the
State has abandoned this issue by failing to brief it. Moreover, the State has failed in this
case to satisfy the requirements for bringing an appeal upon a question reserved by the
prosecution pursuant to K.S.A. 2015 Supp. 22-3602(b)(3). Nevertheless, in the event it is
determined on review that we are wrong to dismiss this appeal for lack of jurisdiction, we
will proceed to address the merits of the single claim the State raises in this appeal.

DID THE DISTRICT COURT ERR IN NOT ADMITTING
THE STATE'S EVIDENCE OF THE 911 CALL?

The State contends that the district court erred in not admitting the State's evidence
of Rippetoe's 911 call. The State goes through an extensive overview of the caselaw,
discussing Ohio v. Clark, 576 U.S. ___, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015);
Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011); Davis, 547
U.S. 813; Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004); and the Kansas case, Brown, 285 Kan. 261. The State maintains that despite all of
this precedent, there is "no bright line rule" and no case from Kansas on whether
statements from a call to 911 are testimonial. The State then cites to four cases from other
jurisdictions to demonstrate that other courts have held 911 calls are nontestimonial.
Lastly, the State argues that Rippetoe's statements fit under the hearsay exceptions of
present sense impression, excited utterance, and statements of physical condition.

Estell contends that Rippetoe's statements on the 911 recording are inadmissible
and the district court was correct in excluding the evidence. Estell points out that while
the State cites cases from other jurisdictions that have held 911 calls are nontestimonial,
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there are also cases from other jurisdictions that have held such statements are testimonial
in nature. Estell asserts that there was no ongoing emergency during Rippetoe's call
because the alleged battery had taken place some 3 hours before the call.

When addressing a constitutional claim, this court is addressing a question of law
which falls under de novo review. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853
(2014). The Confrontation Clause of the Sixth Amendment "provides that '[i]n all
criminal prosecution, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.'" Crawford, 541 U.S. at 42. The Confrontation Clause prohibits
testimonial statements from being admitted unless the witness who made the statements
is available to testify or the defendant has previously had an opportunity to cross-examine
the witness. 541 U.S. at 53-54.

A statement is testimonial when it is made during the course of an interrogation in
which "the primary purpose . . . is to establish or prove past events potentially relevant to
later criminal prosecution." Davis, 547 U.S. at 822. But a statement is nontestimonial
when it is made during an interrogation in which the primary purpose is to aid in "an
ongoing emergency." 547 U.S. at 822. While an ongoing emergency can be an important
relevant factor in determining whether a statement is testimonial, it is not the only factor
a court should consider. Bryant, 562 U.S. at 366. In determining the primary purpose of
the statement, a court "should look to all of the relevant circumstances." 562 U.S. at 369.

Synthesizing the holdings of several United States Supreme Court decisions, the
Kansas Supreme Court has established a four-factor test to determine whether an out-of-
court statement is testimonial in nature. See Brown. 285 Kan. at 291. These factors are:

"(1) Would an objective witness reasonably believe such a statement would later
be available for use in the prosecution of a crime?
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"(2) Was the statement made to a law enforcement officer or to another
government official?
"(3) Was proof of facts potentially relevant to a later prosecution of a crime the
primary purpose of the interview when viewed from an objective totality of the
circumstances, including circumstances of whether
(a) the declarant was speaking about events as they were actually happening,
instead of describing past events;
(b) the statement was made while the declarant was in immediate danger, i.e.,
during an ongoing emergency;
(c) the statement was made in order to resolve an emergency or simply to learn
what had happened in the past; and
(d) the interview was part of a governmental investigation; and
"(4) Was the level of formality of the statement sufficient to make it inherently
testimonial; e.g., was the statement made in response to questions, was the statement
recorded, was the declarant removed from third parties, or was the interview conducted in
a formal setting such as in a governmental building?" 285 Kan. at 291.

Applying the four-factor test of Brown to the facts herein supports the district
court's conclusion that the statements made by Rippetoe on the 911 tape are testimonial
in nature. Applying the first factor, it is clear that an objective witness would reasonably
believe the statements would be available in a future prosecution. See 285 Kan. at 291.
During the 911 call, Rippetoe talks about her injuries multiple times and specifically
mentions preserving evidence. Furthermore, as Estell points out, most people are aware it
is common practice to record 911 calls. Applying the second factor, Rippetoe's 911 call
clearly was made to a "government official" and possibly even a "law enforcement
officer." See 285 Kan. at 291.

The third factor of Brown is whether proof of facts potentially relevant to a later
prosecution was the primary purpose of the interview when viewed from an objective
totality of the circumstances. 285 Kan. at 291. The court offers four subfactors to
demonstrate this factor, at least three of which are met in this case. First, Rippetoe was
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"describing past events," specifically an alleged battery/kidnapping that happened
approximately 3 hours before the 911 call. See 285 Kan. at 291. Second, the statement
was not made when Rippetoe was still "in immediate danger" or "during an ongoing
emergency." See 285 Kan. at 291. We note with significance that Rippetoe rejected the
operator's offer to call for an ambulance. Third, Rippetoe's statements, at least in regard
to the battery, were not made "to resolve an emergency" but rather to inform the police of
past events that had happened 3 hours earlier. See 285 Kan. at 291. While the State might
maintain that an ongoing emergency was taking place because Rippetoe believed her
child had been kidnapped, that is not the charge here. Instead, the State is trying to use
the statements as substantive evidence that Estell committed a battery, something that
clearly was not ongoing when the 911 call was made.

Looking to the fourth and final factor of Brown, the statement in this case was
rather informal. See 285 Kan. at 291. The only factor lending it to being formal is that the
statement was recorded and some of the statements made on the 911 call were "made in
response to questions." See 285 Kan. at 291. Thus, this final factor does not favor the
statements being testimonial. However, given that three of the four Brown factors
demonstrate that Rippetoe's statements were testimonial in nature, the district court was
correct in finding that the admission of the statements without an opportunity for cross-
examination would have violated Estell's rights under the Confrontation Clause.

Because the admission of the statements on the 911 call would have violated
Estell's rights under the Confrontation Clause, we do not need to address the State's
arguments as to the application of certain hearsay exceptions. We conclude that the
district court did not err in excluding the State's evidence of the 911 call. We offer no
opinion on whether the district court properly dismissed the aggravated battery charge
against Estell after the preliminary hearing because the State failed to brief this issue.

Affirmed.