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Wills v. United States

Court of Appeals of Columbia District

October 13, 2016

Andrew Wills, Appellant,
United States, Appellee.

          Submitted January 7, 2015

         Appeal from the Superior Court of the District of Columbia (DVM-2423-13) (Hon. Rhonda Reid Winston, Trial Judge)

          Christine Pembroke was on the brief for appellant.

          Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and James A. Ewing, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Beckwith and McLeese, Associate Judges; and Reid, Senior Judge.


         This case was submitted to the court on the transcript of record and the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that appellant's conviction for attempted theft is reversed, and the matter is remanded to the Superior Court for further proceedings. Appellant's assault conviction is affirmed.

          Corinne Beckwith, Associate Judge

         After a bench trial, the trial judge in this case convicted appellant Andrew Wills of simple assault[1] and attempted second-degree theft[2] stemming from an altercation between Mr. Wills and his wife in a gas station parking lot. Mr. Wills contends that his wife's on-the-scene statement that Mr. Wills "snatched" her keys from her-uttered in response to a police officer's question about "how he got the keys"-was admitted in violation of the Confrontation Clause of the Sixth Amendment of the U.S. Constitution. U.S. Const. amend. VI, cl. 2. We conclude that the complainant's statement was "testimonial" under this court's and the Supreme Court's Confrontation Clause decisions, that Mr. Wills has satisfied the requirements of the plain error test that applies to his claim, and that his conviction for attempted theft must therefore be reversed. We affirm Mr. Wills's conviction for assault, however, because the admission of the complainant's statement did not affect the assault charge and because we find no merit in Mr. Wills's other claims challenging that conviction.


         Ndya Silas testified that she was coming out of a gas station convenience store in Northeast Washington, D.C., one evening when she heard a scream. She turned and saw a man on top of a woman inside a yellow Ford Mustang that was parked near the station's air pump.[3] The man, whom she described as wearing a black jacket and jeans, struck the woman at least once with his fists and pulled her out of the car by her hair. Ms. Silas called 911 and reported the assault to the police, who arrived about two minutes later. She testified that she did not hang up the phone until she saw the police arriving at the gas station with their lights on, that she left the scene when the police arrived, and that the man she saw striking the woman did not leave the scene. A recording of Ms. Silas's 911 call reporting these observations was played at trial.

         Over defense counsel's objection on both hearsay and Confrontation Clause grounds, the government introduced a recording of another 911 call-this one placed by an unidentified caller who stated that he was at a gas station watching a man and a woman "physically arguing" near a yellow Mustang. The caller also stated that the man, whom he (like Ndya Silas) described as wearing a black jacket and jeans, had thrown a set of car keys "over onto the highway."

         Metropolitan Police Department Sergeant Brett Parson testified that he responded to "a radio assignment for an assault in progress." When he arrived at the gas station, he saw two people next to a yellow Mustang-a woman seated on a step and a man standing above her. The woman was crying and "breathing a little heavily." The officer exited his police car and "motioned to the female to come to [him]." According to Sergeant Parson, she got up "very quickly" and walked over to him, looking over her shoulder toward the man as she approached the officer. The officer asked if she was okay and she "answered in the affirmative." Pointing to Kenilworth Avenue, she then told him, "You need to get my phone. He threw my phone into the street. . . . And he's got my keys. You need to get my keys." The officer then asked "how he got the keys, " to which she responded, "He snatched them from me." Sergeant Parson then called another officer over to conduct a "more thorough interview." A third officer later recovered keys from the man at the scene, whom Sergeant Parson identified at trial as the appellant, Andrew Wills. According to Sergeant Parson, the woman at the scene described herself as Mr. Wills's wife, though her name was never introduced into evidence.

         The trial court found Mr. Wills guilty of attempted second-degree theft and assault.[4] The court first determined that Mr. Wills was the person who committed the assaults described by Ms. Silas and the anonymous 911 caller. The court then also found, based on Sergeant Parson's recounting of the complainant's statements, that Mr. Wills took his wife's keys with the intent to deprive her of those keys. Mr. Wills timely appealed.


         Mr. Wills contends that the admission of his wife's statement that he "snatched" her keys violated his constitutional right to confrontation.[5] The Confrontation Clause "guarantees a defendant's right to confront those who bear testimony against him, " Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (internal citations and quotation marks omitted), and ensures that he has a "full and fair opportunity" to challenge the evidence against him through adversarial cross-examination of the government's witnesses. Delaware v. Fensterer, 474 U.S. 15, 22 (1985). It is not enough for the government to present reliable evidence; the Confrontation Clause requires that "reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford v. Washington, 541 U.S. 36, 61 (2004). The protection is thus procedural, reflecting the Framers' judgment "about how reliability can best be determined" to ensure fairness in the criminal justice system. Id.

         As the U.S. Supreme Court has interpreted it, the Confrontation Clause bars admission of "testimonial" out-of-court statements unless the witness testifies at trial or the witness is unavailable and the defendant has had prior opportunity for cross-examination. Id. at 68. In the consolidated cases Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006), which both involved the admissibility of the complainant's out-of-court statements about a domestic dispute, the Supreme Court held that 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." Statements are testimonial, however, "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." Id. at 822.

         Mr. Wills's trial counsel never argued to the trial court that the complainant's statements were testimonial and that they should be excluded on Confrontation Clause grounds. He objected to the statements' admission, but only on hearsay grounds, prompting a discussion about whether they were admissible as excited utterances and ultimately a ruling by the trial court that they were. Because Mr. Wills's trial counsel argued only that the complainant's statements were inadmissible hearsay, we apply a plain-error standard of review to his constitutional claim. Long v. United States, 940 A.2d 87, 91 (D.C. 2007); Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006). Under that standard, Mr. Wills must show error that is plain, that affected his substantial rights, and that seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Guevara v. United States, 77 A.3d 412, 418 (D.C. 2013).

         A. Error

         Here, the complainant did not testify at trial and Mr. Wills did not have prior opportunity to cross-examine her, so Mr. Wills's Confrontation Clause claim turns on whether the complainant's statement that he "snatched" her keys was "testimonial" under Crawford. In assessing the testimonial nature of statements made when police respond to an emergency call for help, we "objectively evaluate" the circumstances and "the statements and actions of both the declarant and [the] interrogators, " and we consider these circumstances from the perspectives of both parties to the interrogation. Michigan v. Bryant, 562 U.S. 344, 359, 367 (2011).

         Turning first to Sergeant Parson's actions and the events from his viewpoint, the record is silent as to whether the officer knew what the 911 callers had reported as he drove to the gas station within minutes of receiving a call about an assault in progress. When he arrived, by all indications the incident was over, and the evidence did not suggest that the scene he arrived to was volatile or chaotic. Sergeant Parson had the support of at least two other officers who arrived in marked cruisers at the same time he did, he testified that there were "people coming and going from the gas station that didn't pay much of a mind, " and he immediately separated the complainant from Mr. Wills by motioning her over to him. The officer did not testify that he saw any weapons, Mr. Wills and the complainant were not physically fighting or arguing, and although the complainant was crying and breathing heavily-facts that in some cases could suggest an ongoing emergency[6]-she had no apparent injuries. Though Mr. Wills was still on the scene and was described as standing over the complainant when Sergeant Parson first arrived, and ...

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