Andrade v. United States

106 A.3d 386

Danny ANDRADE, Appellant

v.UNITED STATES, Appellee.

No. 13–CM–224.

District of Columbia Court of Appeals.

Argued Oct. 8, 2014.

Decided Jan. 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.

Opinion

McLEESE, Associate Judge:

Appellant Danny Andrade seeks reversal of his conviction for assault. Mr. Andrade contends that his Sixth Amendment right to 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 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.

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, 562 U.S. 344, 131 S.Ct. 1143, 1153, 179 L.Ed.2d 93 (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, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).¹ In determining the primary purpose of police questioning, courts “objectively evaluate the circumstances in which the encounter 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 (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, 126 S.Ct. 2266 (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, 407 Md. 307, 965 A.2d 75, 86 (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 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 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, 139 Conn.App. 189, 55 A.3d 311, 319 (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 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...