DANNY ANDRADE v. UNITED STATES , 2015 D.C. App. LEXIS 2 ( 2015 )


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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
    (DMV-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.