To summarize, in a criminal proceeding, the first step in analyzing whether a statement is admissible hearsay is to determine whether the statement was testimonial. Assuming the statement was testimonial, the declarant must actually testify at the hearing in order for a hearsay statement to be admissible. The declarant's mere presence at the hearing is insufficient for the hearsay statement to be admissible in a criminal proceeding. While it is the better practice to call the declarant as a witness before the hearsay statement is offered into evidence, the failure to do so does not violate the Confrontation Clause as long as the declarant actually testifies at the hearing.
Here, Naomi's statements were made to a Wichita EMCU detective conducting an investigation of the rape allegations K.C.R. had made against Kelley. Therefore, Naomi's statements were made during the course of a police interrogation and an objective witness would reasonably believe that her statements would be available for use at a later trial, making her statements testimonial. Because the statements were testimonial, Kelley's rights under the Confrontation Clause are implicated and the Fisher/Davis rule applies.
Under the Fisher/Davis rule, Naomi needed to testify as a witness, either before or after Mar testified, in order to render her statements to Mar admissible. Because Naomi did not actually testify as a witness at trial, her hearsay statements should not have been admitted into evidence.
The COA went on the reject the state's claim that Mr. Kelley had failed to preserve this issue for appeal and that he acquiesced by cross-examining the witness that did appear in court. The COA went on to hold that the error was not harmless:
Considering K.C.R.'s recantation of her allegations against Kelley, the lack of substantial physical evidence supporting the allegations, and the significance of Naomi's hearsay statements to Mar, we are unable to conclude beyond a reasonable doubt that the inadmissible hearsay testimony had little, if any, likelihood of having changed the result of the trial.
A good case, both on procedure and substance.
[Update: the state did not file a PR and the mandate issued on November 12, 2009.]