Austin v. U.S.

315 A.3d 580

Joshua C. AUSTIN, Appellant,

v.UNITED STATES, Appellee.

No. 22-CF-0085

District of Columbia Court of Appeals.

Argued February 6, 2024

Decided May 23, 2024

Appeal from the Superior Court of the District of Columbia (2019-CF2-016287), (Hon. Rainey Brandt, Trial Judge)

Cecily E. Baskir for appellant.

Katherine M. Kelly, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, Chrisellen R. Kolb, Elizabeth H. Danello, Kristian L. Hinson, and Emma McArthur, Assistant United States Attorneys, were on the brief, for appellee.

Before Easterly, Deahl, and Shanker, Associate Judges.

Shanker, Associate Judge:

In October 2019, Emilie Marvil called 911 and reported that she had been pushed down and robbed in the stairwell of her apartment building about five minutes earlier by an individual she described to the 911 operator. Police officers found appellant Joshua C. Austin a short time later and arrested him in connection with the incident. Before Mr. Austin’s jury trial on multiple charges, Ms. Marvil died from unrelated causes. The trial court admitted the 911 call as evidence against Mr. Austin and Mr. Austin was convicted.

Under the Sixth Amendment’s Confrontation Clause, criminal defendants enjoy the right to confront witnesses against them. The Clause was intended to preclude conviction in circumstances where the defendant was not given the opportunity to test the reliability of the witness’s statements in the crucible of cross-examination. The Confrontation Clause therefore prohibits the admission of certain statements made outside the courtroom by witnesses who are unavailable to testify.

But not all out-of-court statements fall within the purview of the Confrontation Clause. Only those that are "testimonial" in nature—that is, akin to testimony that would be offered at trial in aid of prosecution—are constitutionally prohibited from being used against the defendant. Mr. Austin asks us to decide whether the state ments in Ms. Marvil’s 911 call were of this kind.

We agree with Mr. Austin that the statements Ms. Marvil made during the 911 call were testimonial and reject the government’s argument that they were instead made with the primary purpose to assist the police in meeting an ongoing emergency. Because Ms. Marvil did not appear at trial, admitting her statements to the 911 operator into evidence violated Mr. Austin’s Sixth Amendment rights. We therefore reverse two of Mr. Austin’s convictions—the convictions for which the government cannot demonstrate that the error was harmless beyond a reasonable doubt—and remand to the trial court for further proceedings.

I. Background

A. The Underlying Incident and Mr. Austin’s Convictions

The evidence at trial supported the following. Ms. Marvil, who was sixty-eight years old, left her apartment building for a grocery market located approximately a block and a half away. Video footage from inside the market showed Ms. Marvil shopping for groceries. While Ms. Marvil was shopping, Mr. Austin entered the store and stood by a counter near the register.

After she finished shopping, Ms. Marvil placed her items on the counter, took out a green change purse, and paid the cashier. The cashier handed Ms. Marvil her change, which she then put into her change purse. The cashier packed Ms. Marvil’s items in a white plastic grocery bag and handed the bag to Ms. Marvil, Ms. Marvil then left the store. After a few moments, Mr. Austin also left the store and walked toward his bicycle.

Ms. Marvil returned to her apartment building from the store. Video footage from her apartment building showed Ms. Marvil walking through the front door. Mr. Austin arrived on his bike seconds after Ms. Marvil and grabbed the door just as it was closing. Mr. Austin followed Ms. Marvil through the lobby, up the stairs, and out of camera range. Approximately forty seconds after Mr. Austin walked out of camera range, he returned through the lobby from the same direction, walked out the door, and rode away on his bike. From the video footage, Ms. Marvil and Mr. Austin were the only two people who entered or exited the lobby during this period.

A few minutes later, at approximately 12:41 p.m., Ms. Marvil’s neighbor, Esperanza Canales, arrived at the apartment building. Ms. Canales did not see anyone in the lobby or leaving the building at this time. Ms. Canales heard Ms. Marvil calling for help, saying, "help me, please, please." Ms. Canales found Ms. Marvil in the stairwell with her groceries and purse "[strewn] around on the ground" and "spouting blood on her hands." Ms. Canales asked Ms. Marvil if she was okay and if she wanted Ms. Canales to call an ambulance or the police. Ms. Marvil declined but asked Ms. Canales for help getting to her apartment. Although Ms. Canales had some difficulty, she eventually helped Ms. Marvil to her apartment.

About five minutes after the incident, Ms. Marvil called 911. As discussed in more detail below, Ms. Marvil described her assailant to the 911 operator as a tall, thin, Black man wearing a cap and riding a black bike. Over Mr. Austin’s objection, the trial court admitted the 911 call as evidence at trial and the government played the call recording for the jury.¹

Metropolitan Police Department (MPD) Officers Norbert Dengler and Tirik Davis responded to Ms. Marvil’s "priority one call for service involving a robbery, force and violence." After Officer Davis arrived at her apartment, Ms. Marvil gave him a description of her attacker and Officer Davis broadcast a "lookout." At trial, Officer Davis testified that Ms. Marvil described her attacker as a Black male in his mid-twenties, approximately 5'6" to 5'7" tall, with a "medium complexion" and a "[t]hin build, [wearing] dark clothing," and who was "[p]ossibly wearing a skull cap and was riding … a black bike without a kickstand."² Officer Dengler unsuccessfully canvassed the area for a suspect matching the lookout. Shortly thereafter, emergency medical technician Tekola Pettis arrived to treat Ms. Marvil’s wounds, which included bruising and abrasions on her arms. At trial, Ms. Pettis testified that Ms. Marvil said that she had been assaulted in the hallway of her building,³

Inside Ms. Marvil’s apartment, police recovered an empty green plastic change purse and a white plastic grocery bag that contained grocery items. Forensic analysis found three prints on the plastic grocery bag matching two of Mr. Austin’s fingers and his left palm. The forensic analyst found no latent prints on the green plastic change purse.

Police eventually apprehended Mr. Austin, who was charged with (1) first-degree burglary of a senior citizen (D.C. Code §§ 22-801(a), -3601); (2) kidnapping of a senior citizen (D.C. Code §§ 22-2001, - 3601); (3) robbery (of currency) from a senior citizen (D.C. Code §§ 22-2801, - 3601); and (4) assault with intent to commit the robbery of a senior citizen (D.C. Code §§ 22-401, -3601). Ms. Marvil died in May 2021 from an unrelated, long-term illness. After a December 2021 trial, a jury convicted Mr. Austin of burglary, robbery, and assault with intent to commit robbery, and acquitted him of kidnapping. The trial court sentenced Mr. Austin to concurrent twenty-four-year terms of imprisonment for burglary and robbery, to be followed by five years of supervised release (the court did not impose a sentence for assault with intent to commit robbery because it merged with the robbery conviction).

Mr. Austin timely appealed.

B. The 911 Call and the Government’s Motion in Limine

1. The 911 Call

Like the jury, this court was provided with both the recording and a transcript of the 911 call. It proceeded as follows:

Operator. D.C. 911. What’s the location of your emergency?

Marvil: I’m at 5922 13th Street Apartment 209.

Operator: Ok, what section of the city are you in?

Marvil: Northwest.

Operator: Repeat your address for verification.

Marvil: I’m sorry?

Operator: Repeat your address for me.

Marvil: 5922 13th Street, Northwest, Apartment 209, DC 20011.

Operator: What’s your telephone number?

Marvil: 202-686-0147.

Operator: Verified. What’s your name, ma’am?

Marvil: Emilie E-M-I-L-I-E, last name Marvil M-A-R-V as in Victor-I-L.

Operator: Emilie, what’s your emergency?

Marvil: I was just attacked in my apartment building walking up the stairs. He took my money, and he threw me down and hit me in the arms, and they are kind of bleeding now. But I just wanted to report that.

Operator: Ok. Do you know who he is?

Marvil: I’ve never seen him. I–

Operator. Did he have any weapons?

Marvil: I don’t know. He threw me down part of the stairs.

Operator: Is he still there?

Marvil: No sir. He …

Operator: Ok.

Marvil: He got my, he dumped my package, my groceries onto the floor and pulled me down the stair and found my money. He had a bike with him.

Operator: Ok, give me his description. Was he … How long ago did it happen? Marvil: About five minutes ago.

Operator: Ok. And give me a description. Was he Black, White, Hispanic, or Asian?

Marvil: He was Black and tall and thin. I think he had a cap on. He was riding a bike. He came up behind me in my building. Our security door doesn’t work.

Operator: Ok.

Marvil: So he followed me into the building.

Operator: Did you see what type of shirt he had, what type of shirt or pants he had on?

Marvil: No, I’m sorry I didn’t.

Operator: You said, you said … And did you see the color of his bike?

Marvil: It was a black bike, and–

Operator: He left on a black bike? Did you see what direction he went in?

Marvil: No, I was in the stairwell. I only saw him coming in, and because the door doesn’t lock, he just kept following me. Operator: Ok. Do you need medical, do you need medical treatment, ma’am?

Marvil: I’m going to clean up the abrasions myself and the blood. And I’ll be fine.

Operator: Oh, ok. And so you said the security door is not working so police don’t need any access codes to get into your building?

Marvil: No.

Operator: All right.

Marvil: And he has a...