State v. Froelich

897 N.W.2d 905

STATE of North Dakota, Plaintiff and Appellee

v.Darrell Frank FROELICH, Defendant and Appellant

No. 20160349

Supreme Court of North Dakota.

Filed June 29, 2017

Derek K. Steiner (on brief), Assistant State's Attorney, Burleigh County State's Attorney's Office, Bismarck, ND, for plaintiff and appellee.

Thomas J. Glass (on brief), Bismarck, ND, for defendant and appellant.

Kapsner, Justice.

[¶ 1] Darrel Froelich appeals from a criminal judgment entered after a jury found him guilty of simple assault domestic violence. We affirm the criminal judgment.

I

[¶ 2] On February 10, 2016, Froelich was charged with simple assault domestic violence in violation of N.D.C.C. § 12.1–17–01(1). The State alleged Froelich assaulted his girlfriend's son-in-law, a household member. The case proceeded to trial. At trial, the State called the alleged victim, the alleged victim's wife, the responding officer, and a 911 operator to testify. According to the victim's wife, Froelich had been drinking throughout the day and began acting angry and shouting in the home. The victim testified Froelich became aggressive and punched a door as the victim's wife left the home with the victim's child. The victim testified Froelich came at him and caused scratches and redness on his face. The victim testified he raised his arms defensively, but never struck Froelich.

[¶ 3] The State planned to call Froelich's former girlfriend, who made the 911 call, but she did not appear on the day of trial. The State sought to introduce a recording of the 911 call, and Froelich objected because the caller was not in court to testify. After some discussion, the district court permitted the State to play a recording of the 911 call after using the 911 operator to lay foundation for the recording. The State played only a portion of the 911 call for the jury. In a discussion outside the jury's presence, the State noted it stopped the recording early so the jury would not hear the entire call. The State explained, "the 911 caller[ ] does allude to previous acts of Mr. Froelich beating her at that point and she makes further comments which we believe may prejudice the defendant in this matter...." Froelich presented his case after the State rested. Froelich testified and gave a conflicting account of events. Froelich testified the victim had been the aggressor, and the confrontation lasted only ten seconds before the victim left the home.

[¶ 4] The jury found Froelich guilty of simple assault domestic violence. The district court entered a judgment of conviction on September 16, 2016. Froelich filed a notice of appeal on October 12, 2016.

II

[¶ 5] On appeal, Froelich argues the admission of a portion of the 911 call violated his Sixth Amendment right to confront witnesses. The State argues admission of the 911 call did not violate Froelich's constitutional rights because the statements were not testimonial. The State asserts that if this Court concludes admission of the call violated Froelich's rights under the Confrontation Clause of the Sixth Amendment, it amounted to harmless error.

[¶ 6] The Confrontation Clause of the Sixth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. "Our standard of review for a claimed violation of a constitutional right, including the right to confront an accuser, is de novo." State v. Blue , 2006 ND 134, ¶ 6, 717 N.W.2d 558.

[¶ 7] Although caselaw had previously focused on the reliability of statements made by the unavailable declarant, the right to confront witnesses guaranteed under the Sixth Amendment was redefined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Blue , 2006 ND 134, ¶ 7, 717 N.W.2d 558. "Under Crawford , the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant." Id. at ¶ 8 (citing Crawford , 541 U.S. at 59, 124 S.Ct. 1354 ). Under N.D.R.Ev. 804(a)(5), a declarant can be considered unavailable as a witness if the declarant is "absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure" his or her attendance at trial. The record indicates the State intended to call the declarant, but she simply refused to testify. The State did not attempt to qualify the declarant as "unavailable" under the North Dakota Rules of Evidence at trial. The record also indicates Froelich did not have an opportunity to cross-examine the declarant. Thus, the central inquiry is whether the portion of the 911 call played for the jury was testimonial.

[¶ 8] This Court discussed what the United States Supreme Court had outlined as testimonial in Crawford :

The Supreme Court described three "formulations" of the "core class of ‘testimonial’ statements." [Crawford , 541 U.S. at 51], 124 S.Ct. 1354. First, the Court described a class consisting of "ex parte in-court testimony or its functional equivalent," which includes such things as "affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorily." Id. The second class of testimonial statements consists of out-of-court statements "contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Id. at 52, 124 S.Ct. 1354. The final class described by the Supreme Court is comprised of testimonial statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id.

Blue , 2006 ND 134, ¶ 9, 717 N.W.2d 558. The United States Supreme Court gave several examples of testimonial statements including: "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford , 541 U.S. at 68, 124 S.Ct. 1354. "In the absence of police interrogation or in court testimony, defining exactly what is ‘testimonial’ has caused other courts to struggle with a precise definition, producing, as one court described it, a ‘miasma of uncertainty.’ " Blue , at ¶ 10 (quoting United States v. Brito , 427 F.3d 53, 55 (1st Cir. 2005) ).

[¶ 9] In Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the United States Supreme Court gave further guidance on the distinction between testimonial and nontestimonial statements:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

In Davis , a victim of domestic violence called 911 and identified her attacker during the call. Id. at 817–18, 126 S.Ct. 2266. The Supreme Court considered "whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies." Id. at 823, 126 S.Ct. 2266. The Supreme Court held the call was not testimonial...