Submitted January 7, 2015
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.
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,
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
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
bench trial, the trial judge in this case convicted appellant
Andrew Wills of simple assault and attempted second-degree
theft 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.
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. 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
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
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
trial court found Mr. Wills guilty of attempted second-degree
theft and assault. 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.
Wills contends that the admission of his wife's statement
that he "snatched" her keys violated his
constitutional right to confrontation. 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.
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.
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).
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).
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-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