Argued November 20, 2013
Appeal from the Superior Court of the District of Columbia, (DVM-927-12), (Hon. Stuart G. Nash, Trial Judge).
Andrew Murnane for appellant.
Demian S. Ahn, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman and Chrisellen R. Kolb, Assistant United States Attorneys, were on the brief, for appellee.
Before THOMPSON and EASTERLY, Associate Judges, and FARRELL, Senior Judge. OPINION by Senior Judge FARRELL. Dissenting opinion by Associate Judge EASTERLY.
Farrell, Senior Judge.
Following a bench trial, appellant was found guilty of simple assault on Jewel Parker. He contends on appeal that Ms. Parker's statements in answer to the lone question " what happened" by a police officer responding to a report of an assault were admitted in evidence in violation of his constitutional right to confront Parker, who did not testify at trial. Agreeing with the trial judge that the statements were not " testimonial" in the circumstances, hence were not reached by the Sixth Amendment, we affirm.
Two Metropolitan Police officers arrived at a house on Texas Avenue, S.E., minutes after receiving an emergency telephone call from a child for an assault in progress there, apparently involving the child's parents. They were let into the house by a child, and upon entering, one officer, James Phillips, saw five children downstairs as well as a man and a woman -- appellant and Parker -- " arguing at the top of the stairs," a foot apart. Appellant " was pacing back and forth" with " his fist clenched up," while Parker was " backing away a little" and appeared nervous as the couple shouted at each other.
The officers walked upstairs and started moving the pair to separate bedrooms. As Phillips began talking with Parker in one
room, the other officer, Makanoff, " was proceeding to another room" with appellant, although Parker and appellant were still " close," separated by " between five and ten feet." Phillips asked Parker " what happened," and Parker explained -- without further questioning -- that the couple had begun arguing over appellant's use of PCP, that when she locked herself in a room where she felt safe appellant " kicked the door in," and that he grabbed her by the arms, " slammed her on the floor," and " held her down by the arms and choked her." Parker showed Phillips how appellant " choked her by putting his two thumbs to the crevice of, the middle of her throat." She had " tried to defend herself by scratching him," but " lost consciousness."
Parker's narration of the events took under two minutes, throughout which she was " shaking . . . and . . . crying." She had abrasions on her arms and neck, and to Phillips she appeared in need of medical attention. Appellant, meanwhile, was questioned in a room five to ten feet away (the children remained downstairs), and as Officer Makanoff spoke with him, appellant was " profusely sweating," " speaking loudly," and had his " fists balled up."
Phillips testified that " the sum total of [his] knowledge when [he] arrived at the scene was that an assault was alleged to have occurred" there. He had no " information as to the number of people that were involved in the . . . argument," " who was the perpetrator of the assault," and whether weapons had been involved. Specifically, he had no " reason to believe one way or the other that there were . . . weapons involved or . . . no weapons involved," but said that when he went " to any scene where there's an assault in progress," he took " into consideration that weapons might be involved." Phillips' " primary intent in responding that night . . . was to figure out if a crime had occurred, what happened, and if someone needed to be placed under arrest."
Officer Makanoff, who questioned appellant separately, likewise testified that when he and Phillips arrived at the house " they didn't know what had occurred," and as he began questioning appellant, he told him " we don't know why we're here yet."
Based on this record evidence and reasonable inferences therefrom, the trial judge concluded that Parker's answers to the lone question " what happened," posed by Phillips in trying to assess the volatile situation the police met on entering the house, were not testimonial. The trial judge focused on " the relative lack of information [the police] had when they arrived on the scene as to what was going on." Phillips had recalled only that " a child . . . called 911 and said that his parents were fighting." While it was a " reasonable assumption" that the man and woman at the top of the stairs " had been involved in the fight," even that fact " wasn't clear to" the officers such that, by separating the pair, they knew they " had succeeded in defusing the situation." Instead, in trying " to figure out what was going on, to see what they needed to do to address the situation," the officers sought to learn whether they had " to send for . . . medical assistance, whether they needed to secure a weapon to ensure the safety of the children, whether the . . . person who was with . . . Makanoff. . . was, in fact, the person who had assaulted Ms. Parker, or whether there was someone else running around the house that needed to be secured." In short, " [t]here was a wealth of things that they didn't know," and thus it was " plain" to the judge " that the officers' purpose in asking [what happened] . . . had to have been to figure out . . .
their appropriate response [to] an explosive situation . . . still occurring when [they] arrived at the scene . . . ." For similar reasons, the judge concluded that Parker " did not have in her mind that she was providing a statement to the officers that could be used at some subsequent criminal prosecution of [appellant]."
In a context such as this where police have responded to an emergency telephone call for help, a victim's answers to police questioning are " testimonial," and thus reached by the Confrontation Clause, if they have been " procured with a primary purpose of creating an out-of-court substitute for trial testimony." Michigan v. Bryant, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011). More specifically, they are testimonial if " the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Conversely, if the purpose of questioning is " not to create a record for trial," Bryant, 131 S.Ct. at 1155, but " to enable police assistance to meet an ongoing emergency," Davis, 547 U.S. at 822, a resulting answer is not testimonial and its admissibility, instead, " is the concern of state and federal rules of evidence." Bryant, 131 S.Ct. at 1155. " [T]here may be other circumstances, aside from ongoing emergencies, where a statement is not procured" primarily to create the equivalent of testimony, but the existence of such an emergency " is among the most important circumstances" to be considered in making that determination. Id. at 1155, 1162 (emphasis in original).
Further, in carrying out the primary purpose inquiry, a court " objectively evaluate[s] the circumstances in which the encounter occurs and the statements and actions of the parties," id. at 1156; " the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation." Id. at 1160. " [W]hether an emergency exists and is ongoing is a highly context-dependent inquiry," id. at 1158, 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 1157 n.8. As the proponent offering Parker's statements as evidence, the government " bears the burden of demonstrating [their] admissibility." Best v. United States, 66 A.3d 1013, 1017 (D.C. 2013).
Here, upon entering the Texas Avenue home, the police found themselves witnessing a heated argument between two adults. The officers faced what the trial judge correctly saw as a situation " fluid and somewhat confused," Bryant, 131 S.Ct. at 1166, one they had to " assess" quickly " to know whom they [were] dealing with," the " threat to their own safety, and possible danger to the potential victim" or others, in this case five children also in the house. Davis, 547 U.S. at 832. " Such exigencies," the Supreme Court said in Davis, " may often mean that 'initial inquiries' produce nontestimonial statements." Id. (italics omitted). That, in our view, is what Officer Phillips' single question to Jewel Parker produced.
Appellant and our dissenting colleague argue to the contrary by emphasizing that appellant and Parker had been " actively separated" before she was questioned, id. at 830, likening the situation to that in Hammon v. Indiana (consolidated with Davis by the Supreme Court), where the statements subsequently made by the victim were held to be testimonial. With the separation of the parties, however, the similarity between this case and Hammon largely ends. There, upon entering the house the police saw " no emergency in progress" and " no immediate threat to [the victim's] person" (she was on the porch and the defendant was in the kitchen), as she told them that " nothing was the matter" and " things were fine." Id. at 819, 829-30. She was then questioned twice by the police and both times " deliberately recounted" the assault " some time after the events described were over." Id. at 830. Her narrative, besides being " delivered at some remove in time from the danger described," was then reduced to a handwritten affidavit which the police " had her execute . . . in order, [the officer] testified, '[t]o establish events that have occurred previously.'" Id. at 832. At trial the affidavit ...