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Click here for the full text of this decision FACTS:James Brooks was convicted of aggravated robbery. At his trial, a woman testified that when she came home from taking her husband to work one morning, she was accosted by Samuel Hunter, who was carrying a gun. According to the victim, Hunter took her jewelry and went into her bedroom closet. She said she also saw Brooks come into her bedroom and begin throwing clothes out of the closet and asking where her purse was. Brooks then left the bedroom and went downstairs without speaking to Hunter. Hunter remained and sexually assaulted the woman. Hunter and Brooks were both later arrested. Both gave statements. At his trial, Brooks admitted that he was had taken the victim’s jewelry from her purse, but he denied any knowledge of or participation in any robbery or sexual assault. Hunter did not testify, but his statement was entered into evidence over Brooks’ objections that the statement was hearsay and in violation of his confrontation rights under the Sixth Amendment. HOLDING:Reversed and remanded. The court acknowledges that at the time of Brooks’ trial, confrontation claims raised by the admission of hearsay statements were governed by Ohio v. Roberts, 448 U.S. 56 (1980), and White v. Illinois, 502 U.S. 346 (1992). Together, the cases held that, to determine the admissibility of a statement subject to a confrontation challenge, a court must test the statement’s reliability, and that reliability could be measured “by the presence of a firmly rooted hearsay exception, or by the presence of particularized guarantees of trustworthiness, such that adversarial testing would be expected to add little, if anything, to the statement’s reliability.” After Brooks’ trial, while his appeal was pending, the U.S. Supreme Court decided Crawford v. Washington, 124 S.Ct. 1354 (2004), which thoroughly examined the history of the principle of confrontation, noting the constitutional right to confront witnesses was borne out of the historic practice of using ex parte examinations as evidence against the accused. Further, Crawford noted that out that the framers of the constitution would not have allowed out-of-court testimonial statements to be introduced unless the witness was unavailable and the defendant had had a chance to cross-examine the witness. Crawford reviewed Roberts and found the latter’s reliance on a statement’s general reliability was unfounded. Instead, Crawford held that the threshold question is whether the out-of-court statement is “testimonial” in nature. Though the term was not defined, certain categories of statements were cited, including prior sworn testimony from a preliminary hearing, a grand jury proceeding, or an earlier trial, and police interrogations. In this case, Hunter’s statement was testimonial as a matter of law because it was made under police interrogation. The court then reviews the details of Hunter’s statement as part of a harm analysis. Charged with aggravated robbery, the state was required to prove that Brooks, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid the other person to commit aggravated robbery. Hunter’s confession stated appellant: 1. intended to commit a robbery; 2. selected the victim and the location of the robbery; 3. led the group to the destination; 4. furnished the transportation to and from the scene; and 5. checked out the victim’s house and car. Brooks was cross-examined extensively on Hunter’s statement, yet Hunter’s statement itself was never subject to such challenge. Additionally, the prosecutor relied on critical portions of Hunter’s statement in his closing argument. And Brooks’ statement and testimony did not indicate that he was guilty of aggravated robbery. The court concludes that without Hunter’s statement, the state’s case was not “overwhelming” and did not show prior intent to commit aggravated robbery or that Brooks planned or participated in the aggravated robbery. OPINION:Fitzgerald, J.; James, FitzGerald and Lang, JJ.

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