Appeal from the Superior Court of the District of Columbia. (M-10160-02) (Hon. Lynn Leibovitz, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Before FARRELL and KRAMER, Associate Judges, and BELSON, Senior Judge.
After a bench trial, appellant was found guilty of simple assault. On appeal she contends, for the first time, that a hearsay statement by the non-testifying complainant, Marlin Thomas, to his mother was admitted into evidence in violation of Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 126 S.Ct. 2266, 547 U.S. 813 (2006). We hold that the statement was not "testimonial" within the meaning of those decisions, hence that appellant has not shown error, much less plain error, see United States v. Olano, 507 U.S. 725 (1993), in the admission of the statement.
Maxine Thomas testified that on July 9, 2002, she heard a noise outside the house she shared with her son Marlin. Looking out the door, she saw that appellant's car had rolled into Marlin's car and that appellant and Marlin were standing nearby arguing. The pair had been romantically involved in the past and had a child together. Ms. Thomas saw appellant make a "launching" motion toward Marlin, "like she had something" in her hand, but did not see anything "moving through the air" or what the object, if any, was that appellant had thrown. As appellant quickly got into her car and drove off, Marlin ran up the steps to the house holding onto his shirt, which smelled to Ms. Thomas as if "soaked" in gasoline. "[A]cting like he was in a state of shock," he exclaimed that "she [appellant] just threw gasoline on me." Ms. Thomas told Marlin to retrieve the nozzle of the gas can (the nozzle was apparently lying in the street) "just in case . . . something comes up or whatever."
Marlin Thomas did not testify, and his hearsay statement was admitted into evidence without objection. In contrast to the statement and Ms. Thomas's testimony of seeing the "launching" movement, appellant denied having thrown anything at Marlin, although she admitted she had driven to his house angry with him because he had not picked up their child from daycare that day.*fn1
Relying in part on Marlin's statement to his mother, the trial judge disbelieved appellant's testimony and entered a finding of guilty.
As pointed out, appellant did not object to Marlin's out-of-court statement on constitutional grounds (or on hearsay grounds, for that matter), and therefore must show plain error. See, e.g., Long v. United States, 2007 D.C. App. LEXIS 667, *6, ___ A.2d ___, ___ (D.C. 2007). Appellant and amicus curiae argue that, since objection would have been "futile" at trial under then-prevailing (i.e., pre-Crawford) law in this jurisdiction, the issue should be deemed preserved. However, we rejected that argument expressly or implicitly in Long, supra, and Thomas v. United States, 914 A.2d 1 (D.C. 2006), both in reliance on Johnson v. United States, 520 U.S. 461 (1997). In each decision, we dealt with Crawford error that had not been objected to on constitutional grounds, but "where the law at the time of trial was settled [in favor of admission of the disputed evidence] and clearly contrary to the law at the time of appeal," Id. at 468. We followed Johnson's teaching by conducting plain error analysis qualified by the rule that, in this context, the "plain[ness]" of any error is determined as of "the time of appellate consideration." Id.; see also Thomas, 914 A.2d at 20; Long, 2007 D.C. App. LEXIS at *6. Amicus's endeavor to convince us that "futility" was not squarely argued or considered in either of our cited cases is unavailing. Both applied the special rule of Johnson, as we have said, and Johnson dealt expressly with the situation where controlling law foreclosed a given claim of error at the time of trial. We accordingly apply plain error analysis in this case as well.
Under that standard of review, it is not strictly necessary for us to decide whether the admission of Marlin's statement was "error," see Olano, 507 U.S. at 733-34, or even "obvious error" at the time of appeal, id. at 734; we could instead assume error and proceed to ask whether appellant has met her additional burden of showing that the error affected her "substantial rights," id. at 734-35, and, more fundamentally, "'affect[ed] the fairness, integrity or public reputation of judicial proceedings.'" Id. at 736 (citation omitted). The parties and amicus, however, have briefed at length, and ably, the issue of whether there was error to begin with, and we choose to decide that issue to give such guidance as we may on a novel issue in this jurisdiction.
The question of constitutional error vel non under Crawford and Davis turns on whether Marlin Thomas's statement to his mother that "she [appellant] just threw gasoline on me" was testimonial. See Davis, 126 S.Ct. at 2273; Crawford, 541 U.S. at 51. "Only [testimonial] statements . . . cause the declarant to be a 'witness' within the meaning of the Confrontation Clause." Davis, 126 S.Ct. at 2273. Crawford and Davis both concerned "[s]tatements taken by police officers in the course of interrogations," Crawford, 541 U.S. at 52, and in that context, clarifying its holding in Crawford as to the meaning of "testimonial," the Court in Davis held:
Statements are non-testimonial 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 ...