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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CM-224
DANNY ANDRADE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (DVM-2426-12)
(Hon. Fern Flanagan Saddler, Trial Judge)
(Argued October 8, 2014 Decided January 8, 2015)
Thomas D. Engle, with whom Sharon L. Burka was on the brief, for appellant.
Adrienne Gurley, Assistant United States Attorney, for appellee. Ronald C. Machen, Jr., United States Attorney, and Elizabeth Trosman, Chrisellen Kolb, Danny Nguyen, and Ademuyiwa Bamiduro, Assistant United States Attorneys, were on the brief for appellee.
Before WASHINGTON, Chief Judge, and BLACKBURNE-RIGSBY and MCLEESE, Associate Judges.
MCLEESE, Associate Judge: Appellant Danny Andrade seeks reversal of his
conviction for assault. Mr. Andrade contends that his Sixth Amendment right to 2
confront witnesses against him was violated by the admission of evidence that the
complainant, who did not testify at trial, made statements about the alleged assault
to the police officer who responded to the complainant’s 911 call. We agree and
therefore reverse Mr. Andrade’s conviction.
I.
The United States’s evidence at trial indicated the following. In November
2012, Shawnice Reed called 911. Ms. Reed indicated that she and her boyfriend
Danny Andrade had gotten into an argument and that Mr. Andrade “been putting
his hands on [Ms. Reed].” Ms. Reed, who sounded excited and upset on the 911
recording, asked the dispatcher to send the police, saying that she had locked
herself in the bathroom but that Mr. Andrade was about to come into the bathroom.
As the 911 call continued, Ms. Reed said that Mr. Andrade left the house, got on a
bike, and went down the street. Ms. Reed then said that the police had arrived and
that she was going to go speak to them.
Officer James Love and his partner went to Ms. Reed’s residence in
response to the 911 call. They arrived less than five minutes after they were
advised of the call. Ms. Reed met them at the front door, and they walked inside to 3
the living room and began to interview her. Ms. Reed was crying, stuttering,
shaking, and obviously upset. Officer Love, who had been to the residence before,
asked Ms. Reed whether the police had been called because of an incident between
Ms. Reed and Mr. Andrade. After Ms. Reed said yes, Officer Love asked what
had occurred between them. Still very upset and crying, Ms. Reed gave the
following account to Officer Love. Ms. Reed and Mr. Andrade got into an
argument, and Mr. Andrade tried to push her down the steps. After Ms. Reed
started to go down the steps, Mr. Andrade came after her, grabbed her by the hair,
and hit her several times in the back of the head and the neck. Ms. Reed broke
free, but Mr. Andrade grabbed her, putting both of his hands on the front of her
neck. Finally, Ms. Reed broke free again, ran into the bathroom, locked herself in,
and called 911.
At the time that he obtained Ms. Reed’s account of the incident, Officer
Love believed that Mr. Andrade was no longer in Ms. Reed’s residence, and
Officer Love perceived no immediate danger. He questioned Ms. Reed in order to
confirm Mr. Andrade’s involvement and to get the information the police needed
to search for Mr. Andrade. 4
Officers searched for Mr. Andrade but could not locate him. Later that
evening, Officer Love returned to Ms. Reed’s residence, in response to a call
concerning an unwelcome guest. When he arrived, he saw Mr. Andrade outside
Ms. Reed’s residence. Mr. Andrade said that he wanted Ms. Reed to be removed
from the residence, but Officer Love instead arrested Mr. Andrade for assault in
connection with the earlier incident.
II.
In criminal trials, the Confrontation Clause of the Sixth Amendment
generally forbids the admission of evidence of out-of-court “testimonial”
statements made by a non-testifying witness. See Michigan v. Bryant, 131 S. Ct.
1143, 1153 (2011). Out-of-court statements made in response to police
questioning are non-testimonial if the primary purpose of the questioning is “to
enable police assistance to meet an ongoing emergency.” Davis v. Washington,
547 U.S. 813, 822 (2006).1 In determining the primary purpose of police
questioning, courts “objectively evaluate the circumstances in which the encounter
1 Statements can be non-testimonial in other circumstances. Bryant, 131 S. Ct. at 1155. In the present case, the trial court admitted Ms. Reed’s statements solely on the ground that the statements were directed at responding to an emergency. The United States defends the trial court’s ruling solely on that ground. We therefore confine our analysis to that ground. 5
occurs and the statements and actions of . . . both the declarant and [the]
interrogators . . . .” Bryant, 131 S. Ct. at 1156, 1160. “[W]hether an emergency
exists and is ongoing is a highly context-dependent inquiry,” and “must be
objectively assessed from the perspective of the parties to the interrogation at the
time, not with the benefit of hindsight.” Id. at 1158, 1157 n.8. Even if no
emergency actually existed at the time of the questioning, it is sufficient for
purposes of the Confrontation Clause “[i]f the information the parties knew at the
time . . . would lead a reasonable person to believe that there was an
emergency . . . .” Id. at 1157 n.8. The government bears the burden of
establishing that a proffered out-of-court statement made by a non-testifying
witness is not testimonial. Frye v. United States, 86 A.3d 568, 571 (D.C. 2014).
We review de novo a trial court’s ruling that a statement is not testimonial. Graure
v. United States, 18 A.3d 743, 756 n.16 (D.C. 2011).
To determine whether Ms. Reed’s statements to Officer Love were
testimonial or were instead directed at responding to an ongoing emergency, we
must consider both Officer Love’s perspective and Ms. Reed’s perspective. See
Bryant, 131 S. Ct. at 1156, 1160. We turn first to Officer Love’s perspective. Ms.
Reed was crying and appeared obviously upset to Officer Love, which provides
some support for a finding of ongoing emergency. See, e.g., Frye, 86 A.3d at 573 6
(declarant’s “acute emotional distress” provides support for finding that statement
was non-testimonial). But a number of considerations point in the opposite
direction. At the time Officer Love asked Ms. Reed what happened, he was aware
that he was responding to a report of domestic violence and that Mr. Andrade was
the suspect. Moreover, Officer Love believed that Mr. Andrade was not in the
residence.2 See, e.g., Bryant, 131 S. Ct. at 1159 (domestic-violence suspect’s
departure from crime scene provides support for conclusion that there is no
ongoing emergency); Davis, 547 U.S. at 828-29 (same). Officer Love apparently
saw nothing that led him to think that Ms. Reed was in immediate danger. There
was no evidence that Officer Love saw any injuries to Ms. Reed. See, e.g., State v.
Lucas, 965 A.2d 75, 86 (Md. 2009) (lack of evidence that declarant appeared to
need medical attention provides support for conclusion that there is no ongoing
emergency). Nor was there any evidence that Officer Love had reason to believe
that a weapon had been involved in the incident. See, e.g.¸ Bryant, 131 S. Ct. at
1158-59 (absence of weapon provides support for conclusion that there is no
2 Officer Love suggested at trial that he had been aware when he questioned Ms. Reed that Ms. Reed had said during the 911 call that Mr. Andrade had ridden away on a bicycle. The government objected to that testimony as non-responsive, and the trial court sustained the objection but did not strike the testimony. The parties dispute whether the testimony is part of the record, but we need not resolve that dispute. For current purposes, we assume that the record is silent as to whether Officer Love knew that Ms. Reed had told the 911 operator that Mr. Andrade had ridden away on a bicycle. 7
ongoing emergency).
The United States argues, however, that Officer Love needed to get an
account from Ms. Reed in order to determine whether there was an emergency,
because he “had no information” about whether weapons had been involved,
whether Ms. Reed needed medical attention, whether others had been involved,
and where Mr. Andrade was. In fact, we do not know exactly what information
Officer Love had when he questioned Ms. Reed, because no one asked that
question at trial. If Officer Love was aware of the contents of the 911 call, then he
did have information suggesting that only Mr. Andrade was involved, because Ms.
Reed mentioned no one else; that no weapons were used, because Ms. Reed did not
mention a weapon and instead referred only to Mr. Andrade’s hands; and that Mr.
Andrade had ridden away on a bike. Similarly, no one asked Officer Love whether
Ms. Reed had any visible injuries or displayed any signs of physical pain. As we
have noted, it was the United States’s burden to establish that Ms. Reed’s
statements were non-testimonial. The United States did not establish at trial that
Officer Love was unaware of the information in the 911 call, and we cannot simply
assume such lack of awareness. Nor can we assume that Officer Love had no
information about whether Ms. Reed might need medical attention, because we do
not know what Officer Love may have observed and reasonably concluded about 8
Ms. Reed’s physical condition.
Turning to Officer Love’s “statements and actions,” the circumstances of the
questioning appear to have been informal and unstructured, which provides support
for a conclusion that the statements at issue were not testimonial. See, e.g., Bryant,
131 S. Ct. at 1166. On the other hand, Officer Love did not ask questions
specifically directed at possible emergencies, such as “Are you hurt?”; “Do you
need medical attention?”; “Was a weapon involved?”; or “Did he say anything
about coming back or about harming anyone else?” See, e.g., State v. Clue, 55
A.3d 311, 319 (Conn. App. Ct. 2012) (finding statements on 911 call non-
testimonial where 911 operator’s questions were “directed explicitly toward
resolving the emergency situation and ascertaining whether [declarant] was injured
and/or needed assistance”). Rather, after confirming that Mr. Andrade was
involved, Officer Love simply asked Ms. Reed what had occurred. We do not
mean to suggest that such an open-ended question will necessarily result in
testimonial statements. To the contrary, such a question can in some
circumstances be a natural way to determine whether there is an emergency and if
so how to respond to it. See, e.g., Bryant, 131 S. Ct. at 1165-66 (“What
happened?” -- directed to a victim who had been shot by an unknown assailant --
was the “exact type of question[] necessary to allow the police to assess the 9
situation, the threat to their own safety, and possible danger to the potential victim
and to the public . . . .”) (internal quotation marks omitted). But unlike questions
more specifically tailored to identifying whether an emergency exists, questions
such as “What happened?” are also natural ways for an investigating officer to try
to “establish or prove past events potentially relevant to later criminal
prosecution.” Davis, 547 U.S. at 822 (statement is testimonial if “primary purpose
of the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution”).
Finally, we note that Officer Love’s stated reasons for questioning Ms. Reed
were to confirm Mr. Andrade’s involvement and to get the information the police
needed to search for Mr. Andrade. Officer Love did not suggest that he was
questioning Ms. Reed to gather information in order to address a possible
emergency; rather, Officer Love appears simply to have been gathering
information so that the police could apprehend a suspect in a completed offense.
The United States argues, however, that Officer Love’s subjective purpose in
questioning Ms. Reed is irrelevant, because the inquiry into the primary purpose of
the questioning is objective in character. The United States’s argument finds
support in Bryant, where the Supreme Court explained that “the relevant inquiry is
not the subjective or actual purpose of the individuals involved in a particular 10
encounter, but rather the purpose that reasonable participants would have had, as
ascertained from the individuals’ statements and actions and the circumstances in
which the encounter occurred.” 131 S. Ct. at 1156. On the other hand, the
Supreme Court in Davis appeared to treat as relevant an officer’s testimony about
the purpose of police questioning. 547 U.S. at 829. Moreover, in at least one other
setting the Supreme Court has treated the subjective purpose of a police questioner
as relevant in determining how an objectively reasonable officer would have
viewed the questioning. See Rhode Island v. Innis, 446 U.S. 291, 301 & n.7 (1980)
(purpose of police in questioning suspect is relevant to whether police should have
known that questioning was reasonably likely to elicit incriminating response); see
also United States v. Brown, 737 A.2d 1016, 1016 (D.C. 1999) (“Although the
intent of the police is not irrelevant, the [Innis] standard remains an objective
one . . . .”) (citation, brackets, and internal quotation marks omitted). We need not
decide whether the United States is correct that Officer Love’s stated reasons for
questioning Ms. Reed are irrelevant. Instead, we simply assume the point for
current purposes.
Shifting to Ms. Reed’s perspective, Ms. Reed knew at the time she answered
Officer Love’s question that she had already reported the incident to the police,
that she had told the police that Mr. Andrade was involved, that she had mentioned 11
no other participants, that she had not mentioned a weapon, that she had not
mentioned any injuries or need for medical assistance, and that she had told the
police that Mr. Andrade had ridden away on a bicycle. There was no evidence that
Ms. Reed had specific reason to fear that Mr. Andrade was planning to return soon
or that he posed an immediate threat to any other person. Nor was there evidence
that Ms. Reed had suffered injuries requiring medical attention. Finally, Officer
Love’s open-ended question would not reasonably have signaled to Ms. Reed that
Officer Love was seeking information to address an ongoing emergency rather
than to investigate past criminal conduct.
Ms. Reed’s answers to Officer Love’s question also do not suggest a focus
on dealing with an emergency. Ms. Reed did not request medical assistance, ask
the police to take any other emergency steps, or communicate any other
information indicating that there was an ongoing emergency. Rather, Ms. Reed
simply described the circumstances of the earlier incident. See, e.g., Davis, 547
U.S. at 830 (in finding statement testimonial, Court emphasizes that statement
“deliberately recounted, in response to police questioning, how potentially criminal
past events began and progressed”).
Considering the circumstances in their totality, we find that the United States 12
did not carry its burden of establishing that the primary purpose of the questioning
in this case was to enable the police to meet an ongoing emergency. At bottom,
the United States established only that Ms. Reed had just reported a domestic-
violence incident, that she was very upset, that the alleged perpetrator was no
longer on the scene but had not yet been located, and that the questioning was
relatively informal. The Supreme Court has twice suggested that comparable
circumstances do not suffice to render statements non-testimonial. Bryant, 131 S.
Ct. at 1159 (suggesting that there is no ongoing emergency if suspect involved in
“private dispute,” such as domestic-violence incident, “flees with little prospect of
posing a threat to the public”); Davis, 547 U.S. at 828 (Court states that “the
emergency appears to have ended (when [the domestic-violence suspect] drove
away from the premises)” and that statements given thereafter in response to
questions by 911 operator “could readily be maintained” to have been testimonial);
cf. id. at 829-32 (in companion case, Hammon v. Indiana, Court holds that oral
statements made by domestic-violence complainant to police officers were
testimonial, where there was no emergency in progress when officers arrived on
scene; complainant initially told police things were fine; officers separated
complainant and suspect; statements recounted details of completed incident; and
officer ultimately had complainant execute affidavit). 13
Numerous other courts have held statements to be testimonial in
circumstances comparable to those of the present case. See, e.g., Lucas, 965 A.2d
at 76-87 (statements by domestic-assault complainant were testimonial, where
statements were made in response to questioning by officers responding to 911
call; complainant was crying and upset; no one else was in apartment; one officer
had waited outside with person who turned out to be defendant; although
complainant had swollen eyes and marks on neck, there was no evidence that she
had injuries requiring medical attention; and statements recounted circumstances of
completed offense); Commonwealth v. Lao, 877 N.E.2d 557, 561, 565-66 (Mass.
2007) (same where complainant, who told officer that assailant had threatened her
and tried to run her over, had made several phone calls after incident and before
calling 911; complainant was not in peril at time of statements, because alleged
assailant had left); State v. Moua Her, 750 N.W.2d 258, 265-69 (Minn. 2008)
(same where police officer spoke to complainant in public place right after alleged
assault; assailant was not present; there was no evidence that assailant intended to
return to assault complainant or posed threat to others; and although complainant
was clearly upset and appeared to have injuries, there was no evidence that officer
thought complainant needed medical attention), cert. granted, vacated, and
remanded on other grounds, 555 U.S. 1092 (2009), opinion on remand, 781
N.W.3d 869 (Minn. 2010); State v. Mechling, 633 S.E.2d 311, 315, 323-25 (W. 14
Va. 2006) (same where complainant was crying and “really shook up”; there was
no emergency in progress when officers arrived, because assailant had clearly
departed); Wright v. State, 434 S.W.3d 401, 402-08 (Ark. Ct. App. 2014) (same
where officer found complainant, who was “in and out of a panic state,” suffering
from multiple stab wounds; while awaiting ambulance, officer “got as much
information from [complainant] as [he] possibly could”; assailant had left area);
Dixon v. State, 244 S.W.3d 472, 486-87 (Tex. App. 2014) (same where officer
responded to 911 call reporting that assault had just happened; assault had taken
place elsewhere; complainant had then gone home, and assailant was not present;
complainant was very upset and scared, and expressed concern that assailant might
bother her; complainant had knot under her eye; and officer testified that he
collected information to provide to prosecutor); Zapata v. State, 232 S.W.3d 254,
256-60 (Tex. App. 2007) (same where complainant was crying and shaking and
had scratches, red mark, and bruise; when police arrived, complainant was outside
residence and assailant was inside residence; officer testified that she was
gathering evidence for prosecution).
None of the cases cited by the United States are to the contrary, because
none involve circumstances comparable to those of the present case. The Supreme
Court in Bryant held that the statements at issue in that case were not testimonial, 15
but those statements were obtained from a victim who was lying on the ground in a
gas station with a gunshot wound to the abdomen. 131 S. Ct. at 1150. The Court
in Bryant emphasized the severity of the victim’s injuries and the possible threat to
the public posed by a shooting suspect whose motives for shooting the victim were
unknown. Id. at 1163-66. The Court also distinguished its earlier holding in
Hammon, the companion case to Davis, explaining that the statements deemed
testimonial in Hammon arose in the context of a domestic-violence assault that
involved neither a weapon nor serious injury. Id. at 1158-59.
The United States also relies on our recent decision in Frye, but that case
involved very different circumstances. The police in Frye responded to a 911 call
from a child for an assault in progress. 86 A.3d at 569. When they arrived at the
residence in question, they found a man and a woman shouting at each other. Id.
There were also five children in the residence. Id. The defendant had a fist
clenched, and the woman was backing away and appeared nervous. Id. As the
police separated the man and the woman, an officer asked the woman what
happened. Id. at 569-70. At the time he asked the woman what happened, the
officer knew only that he was responding to a report by a child that the child’s
parents were fighting. Id. at 570. The officer did not know the number of people
involved in the incident, the identity of the assailant, or whether a weapon was 16
involved. Id. at 570. As she responded, the woman was shaking and crying, had
visible abrasions, and appeared to be in need of medical assistance. Id. at 570.
Meanwhile, the man, who was five to ten feet away in a different room, had his
fists balled up and was speaking loudly to a different officer. Id. As he was
removed from the residence soon afterwards, the man kicked luggage and other
items. Id. at 573.
In concluding that the woman’s response to the officer’s question was not
testimonial, this court emphasized a number of circumstances that are not present
in this case: the officers arrived in the middle of a heated argument; there were a
number of children present who needed to be protected; the woman appeared to
need medical assistance; and the officers were still trying to clarify and control a
fluid, confused, and volatile situation. Frye, 86 A.3d at 571-74. The conclusion
that the questioning in Frye had the primary purpose of addressing an ongoing
emergency thus does not support the same conclusion in the present case. The
other cases relied upon by the United States are similarly distinguishable. See,
e.g., Smith v. United States, 947 A.2d 1131, 1133-35 (D.C. 2008) (statements made
by domestic-violence complainant during 911 call were not testimonial;
complainant was summoning help to deal with emergency, complainant feared
further assault and was unsure whether assailant was still in residence, and 17
complainant had suffered injuries and requested ambulance); Long v. United
States, 940 A.2d 87, 90-99 (D.C. 2007) (statements made by assault complainant
were not testimonial; complainant was extremely upset, had visible injury to head,
and was covered in blood; complainant flagged police officer down but did not
directly respond to officer’s questions, instead saying “Look what she did to my
face.” and “[S]he cut my face.”; when defendant walked into area, complainant
exclaimed “There she is!”); Lewis v. United States, 938 A.2d 771, 773-82 (D.C.
2007) (initial statements made by assault complainant to police officer were not
testimonial; complainant was crying and very upset, was bleeding from multiple
lacerations from head and face, and had large amount of blood on her shirt; officer
asked if complainant needed medical assistance and complainant indicated that she
did; at time officer asked complainant what happened, officer did not know
identity of assailant or whether assailant was armed; officer’s questions were
designed to gather information to respond to emergency).
In sum, we hold that Ms. Reed’s statements to Officer Love were
testimonial. We further conclude that the admission of evidence about those
statements was not harmless beyond a reasonable doubt. See, e.g., Lewis, 938
A.2d at 776 (erroneous admission of testimonial statements requires reversal unless
harmless beyond reasonable doubt). But for Ms. Reed’s statements to Officer 18
Love, the only description of the assault would have been Ms. Reed’s vague
statement during the 911 call that Mr. Andrade “been putting his hands on [her].”
That Ms. Reed’s statements to Officer Love were the crux of the prosecution’s
case is demonstrated by the emphasis given to those statements by the prosecutor
in closing argument. See, e.g., Morten v. United States, 856 A.2d 595, 602 (D.C.
2004) (“A prosecutor’s stress upon the centrality of particular evidence in closing
argument tells a good deal about whether the admission of the evidence was . . .
prejudicial.”) (brackets and internal quotation marks omitted). Moreover, the trial
court clearly viewed Ms. Reed’s statements to Officer Love as critical, because it
relied entirely on those statements, rather than on the contents of the 911 call,
when explaining the reasons for its verdict. Under the circumstances, we conclude
that reversal is required. See Drayton v. United States, 877 A.2d 145, 151 (D.C.
2005) (accepting United States’s concession that admission of testimonial
statements required reversal, where trial court in bench trial “based its verdict
entirely on [the] statements”).3
3 Given our disposition of the case, we see no need to address Mr. Andrade’s claim that, by the manner in which it advised Mr. Andrade about the right not to testify, the trial court chilled Mr. Andrade’s exercise of the right to testify. We do, however, briefly address Mr. Andrade’s challenge to the admissibility of Ms. Reed’s 911 call as an excited utterance, because that issue could be expected to arise in any retrial. In this court, Mr. Andrade argues that there was inadequate information about how much time passed between the alleged assault and the 911 call. It is unclear whether Mr. Andrade raised that argument in the trial court. In (continued . . .) 19
The judgment of the trial court is therefore reversed, and the case is
remanded for further proceedings.
So ordered.
(. . . continued) any event, the 911 call’s contents permit a reasonable inference that the call “was made within a reasonably short period of time after the startling event.” Castillo v. United States, 75 A.3d 157, 164 (D.C. 2013). Specifically, Ms. Reed, who sounded excited and upset in the 911 call, said that she had locked herself in the bathroom and expressed concern that appellant was about to come in.