IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1070
Filed: 17 May 2016
New Hanover County, No. 14 CRS 52620
STATE OF NORTH CAROLINA
v.
CHRISTOPHER ALLEN MCKIVER
Appeal by Defendant from judgment entered 29 April 2015 by Judge Benjamin
G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 11
February 2016.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E.
Herrin, for the State.
Kimberly P. Hoppin for Defendant.
STEPHENS, Judge.
Defendant Christopher Allen McKiver appeals from the judgment entered
upon his conviction for one count of possessing a firearm as a convicted felon following
a jury trial in New Hanover County Superior Court. McKiver argues that the trial
court committed reversible error, in violation of his rights under the Sixth
Amendment to the United States Constitution to confront the witnesses against him,
when it denied his motion in limine to exclude evidence of an anonymous 911 call and
the subsequent 911 dispatcher’s call back. McKiver also contends that the trial court
STATE V. MCKIVER
Opinion of the Court
erred in denying his motion to dismiss. We hold that although the trial court did not
err in denying his motion to dismiss, McKiver is entitled to a new trial because the
erroneous admission of testimonial statements violated his Sixth Amendment rights
and was not harmless.
Factual Background
At 9:37 p.m. on 12 April 2014, Wilmington Police Department (“WPD”) Officer
Scott Bramley was dispatched to Penn Street in the Long Leaf Park subdivision in
response to an anonymous 911 caller’s report that there was a possible dispute and a
black man with a gun standing outside. Bramley activated his patrol car’s blue lights
and siren on his way to the scene, stopped a few blocks away to retrieve his patrol
rifle from the vehicle’s trunk, then proceeded to Penn Street and parked on the left
side of the roadway. As he exited his vehicle, Bramley noticed two individuals
standing near a black Mercedes that was parked beside a vacant lot. The Mercedes
was still running, and Bramley could hear music “blaring” from its radio as he
approached the two individuals, one of whom was a black male wearing a red and
white plaid shirt, jeans, and a hat, who began to walk toward Bramley. Although
Bramley had not yet received any description of the suspect, he “confronted [the man
in the plaid shirt] about possibly having [a firearm], at which point he lifted his shirt
to show [Bramley] he did not have a gun.” After performing a pat-down to confirm
that the man was unarmed, Bramley let him go and continued his investigation.
-2-
STATE V. MCKIVER
Opinion of the Court
By this time, several other WPD officers had arrived on the scene, which
Bramley would later describe as “very dark” due to the “very sporadic” street lighting
in the area. Bramley observed there were a number of other individuals watching
from nearby residences and walking around near the vacant lot, perhaps 100 yards
away from the Mercedes. After a few moments, Bramley asked the New Hanover
County 911 dispatcher for a better description of the suspect, was informed that the
anonymous 911 caller had already disconnected, and requested the dispatcher to
initiate a call back. After reconnecting with the anonymous 911 caller, the dispatcher
reported to Bramley that “[s]he said it was in a field in a black car,” and that
“[s]omeone said he might have thrown the gun.” Several WPD officers searched for
the gun in the vacant lot and eventually discovered a Sig Sauer P320 .45 caliber
handgun located approximately 10 feet away from the Mercedes. Meanwhile, after
Bramley told the dispatcher he had located a black Mercedes and asked whether the
caller had provided a description of the suspect, the dispatcher replied, “Black male,
light plaid shirt. He was last seen by the car with a gun in his hand and the [caller]
went inside.” Bramley later testified that upon receiving this information, he
“immediately knew [the suspect] was the first gentleman that I had come into contact
with because no one else in that area was wearing anything remotely similar to that
clothing description.” Bramley returned to his patrol car to see if he could pull a
photograph off his vehicle’s dashboard camera of the man he had patted down upon
-3-
STATE V. MCKIVER
Opinion of the Court
first arriving in order to relay it to officers en route to the scene, but was unable to do
so. Shortly thereafter, McKiver approached the WPD officers who were searching the
Mercedes and asked what they were doing to his car. Upon seeing the red plaid shirt
McKiver was wearing, Bramley recognized him as the same black male he had patted
down upon his arrival, concluded he met the description provided in the call back to
the anonymous 911 caller, and placed McKiver under arrest.
WPD officers subsequently determined that the Mercedes was registered to
McKiver’s brother in Elizabethtown and found a red bag in the vehicle’s trunk
containing cash and medications prescribed to McKiver. Although they found no
fingerprints or DNA evidence on the firearm they found in the vacant lot, the officers
traced its serial number to one that had been reported stolen from an individual in
Elizabethtown.
Procedural History
On 22 September 2014, McKiver was indicted by a New Hanover County grand
jury on one count of possession of a firearm by a felon and one count of possession of
a stolen firearm. These matters came on for a jury trial in New Hanover County
Superior Court on 27 April 2015, the Honorable Benjamin G. Alford, Judge presiding.
Prior to jury selection, the trial court held a hearing on McKiver’s motion in
limine to exclude evidence of the anonymous 911 call and the dispatcher’s call back.
After noting the lack of any fingerprints or DNA found on the firearm and the lack of
-4-
STATE V. MCKIVER
Opinion of the Court
any eyewitness testimony that he had ever possessed it, McKiver contended that both
calls amounted to testimonial hearsay and that their admission in evidence would
violate his Sixth Amendment right to confront the witnesses against him. In
response, the State argued that the calls were nontestimonial, and therefore properly
admissible, because the statements they contained were made to enable police
assistance to meet an ongoing emergency. The trial court denied McKiver’s motion
but granted his request for a continuing objection to the admission of this evidence in
order to preserve the issue for appellate review.
At trial, the State presented testimony from Bramley about the investigation
he conducted in response to the initial 911 call and, over McKiver’s timely objection,
how he relied on the description provided during the dispatcher’s call back of the
suspect’s shirt to identify and arrest McKiver. In addition to Bramley’s testimony,
the State introduced evidence of McKiver’s prior felony conviction for possession with
intent to sell or distribute marijuana; played a recording of the initial 911 call for the
jury and admitted the 911 call logs into evidence; and also presented testimony from
New Hanover County 911 communications manager Deborah Cottle, who explained
how the 911 dispatch system works. WPD crime scene technician Max Cowart also
testified and explained the procedures he followed for photographing and collecting
evidence from the crime scene, and Elizabethtown resident Hunter Norris testified
-5-
STATE V. MCKIVER
Opinion of the Court
that the firearm recovered from the scene had belonged to his father before it was
stolen.
At the close of the State’s evidence, McKiver moved to dismiss both charges for
insufficient evidence but the trial court denied this motion. McKiver declined to put
on any evidence and renewed his motion to dismiss, which the court again denied
before providing jury instructions on both actual and constructive possession. The
case was submitted to the jury on 29 April 2015. That same day, the jurors returned
verdicts convicting McKiver on the charge of possessing a firearm as a convicted felon
but acquitting him on the charge of possessing a stolen firearm. The court sentenced
McKiver to 14 to 26 months imprisonment, suspended for 36 months of supervised
probation after completion of a six-month active term. After sentencing, McKiver
gave notice of appeal to this Court.
Analysis
Motion to dismiss
We first address McKiver’s argument that the trial court erred in denying his
motion to dismiss the charge of possession of a firearm by a convicted felon.
Specifically, McKiver argues that the court should have dismissed the charges
against him because there was insufficient evidence of additional incriminating
circumstances to support a jury verdict that he constructively possessed the firearm.
We disagree.
-6-
STATE V. MCKIVER
Opinion of the Court
As this Court’s prior decisions make clear, “[w]hen ruling on a defendant’s
motion to dismiss, the trial court must determine whether there is substantial
evidence (1) of each essential element of the offense charged, and (2) that the
defendant is the perpetrator of the offense.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007) (citations omitted). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
State v. Cummings, 46 N.C. App. 680, 683, 265 S.E.2d 923, 925 (citations omitted),
affirmed, 301 N.C. 374, 271 S.E.2d 277 (1980). “[A]ll evidence admitted, whether
competent or incompetent, must be considered in the light most favorable to the
State, giving the State the benefit of every reasonable inference to be drawn from the
evidence and resolving in its favor any contradictions in the evidence.” State v.
Worsley, 336 N.C. 268, 274, 443 S.E.2d 68, 70-71 (1994) (citation omitted). Thus, a
defendant’s motion to dismiss “is properly denied if the evidence, when viewed in the
above light, is such that a rational trier of fact could find beyond a reasonable doubt
the existence of each element of the crime charged.” Id. at 274, 443 S.E.2d at 71
(citation omitted). This Court reviews the trial court’s denial of a motion to dismiss
de novo. Smith, 186 N.C. App. at 62, 650 S.E.2d at 33.
Section 14-415.1 of our General Statutes provides that “[i]t shall be unlawful
for any person who has been convicted of a felony to purchase, own, possess, or have
in his custody, care, or control any firearm[.]” N.C. Gen. Stat. § 14-415.1(a) (2015).
-7-
STATE V. MCKIVER
Opinion of the Court
“[T]he State need only prove two elements to establish the crime of possession of a
firearm by a felon: (1) [the] defendant was previously convicted of a felony; and (2)
thereafter possessed a firearm.” State v. Perry, 222 N.C. App. 813, 818, 731 S.E.2d
714, 718 (2012) (citation omitted), disc. review denied, 366 N.C. 431, 736 S.E.2d 188
(2013). Possession of the firearm “may be actual or constructive. Actual possession
requires that a party have physical or personal custody of the [firearm]. A person has
constructive possession of [a firearm] when the [firearm] is not in his physical
custody, but he nonetheless has the power and intent to control its disposition.” State
v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted),
superseded in part on other grounds by statute as stated in State v. Gaither, 161 N.C.
App. 96, 587 S.E.2d 505 (2003), disc. review denied, 358 N.C. 157, 593 S.E.2d 83
(2004). However, where a defendant does not have “exclusive control of the location
where the [firearm] is found, constructive possession of the [firearm] may not be
inferred without other incriminating circumstances.” State v. Clark, 159 N.C. App.
520, 525, 583 S.E.2d 680, 683 (2003) (citation and internal quotation marks omitted).
In the present case, the evidence introduced at trial tended to show that
McKiver had previously been convicted of a felony; that an anonymous 911 caller saw
a man wearing a plaid shirt and holding a gun near a black car beside a field; that
someone saw that man drop the gun; that upon his arrival at the scene, Bramley saw
McKiver standing near a black Mercedes wearing a plaid shirt; that Bramley saw
-8-
STATE V. MCKIVER
Opinion of the Court
multiple individuals watching from nearby residences and walking near the vacant
lot; that McKiver later returned to the scene and said the car was his; that although
the car was registered to McKiver’s brother in Elizabethtown, WPD officers found
medication prescribed to McKiver himself in the trunk; and that the WPD officers
found a firearm that had been reported stolen from Elizabethtown in the vacant lot
approximately 10 feet away from the Mercedes.
McKiver contends that because the firearm was found not in his possession but
instead in a vacant lot that he did not maintain control over, the State failed to
introduce sufficient evidence of incriminating circumstances from which it could be
inferred that he constructively possessed the gun. However, this argument ignores
the fact that the State also presented evidence that when Bramley arrived, McKiver
was standing near the black Mercedes wearing a shirt similar to the one the
anonymous caller described the man with the gun wearing before someone saw him
drop it. Although McKiver takes issue with the admissibility of the initial 911 call
and subsequent dispatcher’s call back, our standard of review requires consideration
of “all of the evidence actually admitted, whether competent or incompetent.” State
v. Jones, 208 N.C. App. 734, 737, 703 S.E.2d 772, 775 (2010) (holding that even though
evidence was erroneously admitted in violation of the defendant’s rights under the
Confrontation Clause, it nevertheless “provid[ed] substantial evidence, for the
purpose of [the] defendant’s motion” to dismiss), vacated on other grounds, 365 N.C.
-9-
STATE V. MCKIVER
Opinion of the Court
467, 722 S.E.2d 509 (2012); see also State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12,
23 (1996) (“[T]he fact that some of the evidence was erroneously admitted by the trial
court is not a sufficient basis for granting a motion to dismiss.”); State v. Littlejohn,
264 N.C. 571, 574, 142 S.E.2d 132, 134 (1965) (“Though the court below, in denying
[the defendants’] motion for nonsuit, acted upon evidence which we now hold to be
incompetent, yet if this evidence had not been admitted, the State might have
followed a different course and produced competent evidence tending to establish
[each element of the offense].”). Thus, even assuming arguendo that the trial court
erred in admitting this evidence, it remains relevant to our analysis for purposes of
this issue.1 Because this evidence was sufficient to support a reasonable juror in
concluding that additional incriminating circumstances existed—beyond McKiver’s
mere presence at the scene and proximity to where the firearm was found—and, thus,
to infer that McKiver constructively possessed the firearm, we conclude the trial court
did not err in denying McKiver’s motion to dismiss.
Confrontation Clause
McKiver argues that the trial court erred in denying his motion to exclude
evidence of the anonymous 911 call and the dispatcher’s call back because admission
1 Given our conclusion infra that McKiver is entitled to a new trial due to the violation of his Sixth
Amendment rights, we note here that this evidence would clearly be inadmissible against McKiver at
any subsequent trial, and thus would not be proper for the trial court to consider should the same
inquiry arise again.
- 10 -
STATE V. MCKIVER
Opinion of the Court
of the testimonial hearsay they contained violated his rights under the Sixth
Amendment’s Confrontation Clause. We agree.
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation
omitted), appeal dismissed, 363 N.C. 857, 694 S.E.2d 766 (2010). Once error is shown,
the State bears the burden of proving the error was harmless beyond a reasonable
doubt. See N.C. Gen. Stat. § 15A-1443(b) (2015).
The Sixth Amendment to the United States Constitution provides in pertinent
part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. Const. amend. VI. In Crawford v.
Washington, the United States Supreme Court held that the Confrontation Clause
forbids “admission of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had a prior opportunity
for cross-examination.” 541 U.S. 36, 53-54, 158 L. Ed. 2d 177, 194 (2004). Although it
did not provide a specific definition in Crawford of what makes a statement
“testimonial,” the Court offered clarification on this issue in its opinion consolidating
two cases, Davis v. Washington and Hammon v. Indiana. See Davis v. Washington,
547 U.S. 813, 822, 165 L. Ed. 2d 224, 237 (2006).
The statements at issue in Davis were made by the victim to a 911 operator as
the defendant, her ex-boyfriend, attacked her and then fled the scene as soon as she
- 11 -
STATE V. MCKIVER
Opinion of the Court
identified him by name to the 911 operator. Id. at 818, 165 L. Ed. 2d at 234. Although
the victim did not testify at trial, the recording of the 911 call was admitted into
evidence, and the defendant was convicted of violating a domestic no-contact order.
See id. at 819, 165 L. Ed. 2d at 235. The statements at issue in Hammon were made
after police responded to a reported domestic disturbance at a residence to find the
victim “alone on the front porch, appearing somewhat frightened.” Id. (internal
quotation marks omitted). When asked, however, the victim told the officers “nothing
was the matter,” and granted them permission to enter the home, wherein they found
the defendant, her husband, in the kitchen. See id. While one officer remained with
him, another questioned the victim in another room, where she gave a verbal
description of what had happened and completed a form battery affidavit. See id. at
820, 165 L. Ed. 2d at 235. Although the victim did not testify at trial, the defendant
was convicted after the trial court admitted her affidavit into evidence and also
allowed the officer who interviewed her to testify about what she told him. Id. at 820-
21, 165 L. Ed. 2d at 236.
As the Court explained in Davis,
[s]tatements 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.
They are testimonial 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
- 12 -
STATE V. MCKIVER
Opinion of the Court
prosecution.
Id. at 822, 165 L. Ed. 2d at 237. The Court identified several factors relevant to the
determination of whether a statement is testimonial, including: (1) whether the
victim “was speaking about events as they were actually happening, rather than
describing past events”; (2) whether a “reasonable listener” would recognize that the
victim “was facing an ongoing emergency” and her “call was plainly a call for help
against a bona fide physical threat”; (3) whether the questions asked and statements
elicited by law enforcement “were necessary to be able to resolve the present
emergency, rather than simply to learn . . . what had happened in the past”; and (4)
the contextual formality (or lack thereof) in which the victim’s statements were made.
Id. at 827, 165 L. Ed. 2d at 240 (citations and internal quotation marks omitted;
emphasis in original).
Based on this analytic framework, the Court held that the victim’s statements
to the 911 dispatcher in Davis were nontestimonial, and properly admissible, because
they described events as they were happening, were made in the face of an ongoing
emergency in a frantic environment that was neither tranquil nor safe, and provided
information necessary to resolve the present emergency. Id. at 828-29, 165 L. Ed. 2d
at 240-41. In so holding, the Court nevertheless cautioned that what begins as a
conversation to elicit information needed to render emergency assistance could
become testimonial and therefore inadmissible. See id. at 828, 165 L. Ed. 2d at 241
- 13 -
STATE V. MCKIVER
Opinion of the Court
(“This is not to say that a conversation which begins as an interrogation to determine
the need for emergency assistance cannot, . . . , evolve into testimonial
statements, . . . , once that purpose has been achieved.”) (citations and internal
quotation marks omitted). Such was the case in Hammon, the Court concluded,
reasoning that the victim’s statements were testimonial, and therefore inadmissible,
because they were made “some time after the events described were over” and thus
were part of an investigation into past conduct and were not necessary for police to
resolve any ongoing emergency. Id. at 830, 165 L. Ed. 2d at 242. As the Court
explained in a footnote:
Police investigations themselves are, of course, in no way
impugned by our characterization of their fruits as
testimonial. Investigations of past crimes prevent future
harms and lead to necessary arrests. While prosecutors
may hope that inculpatory “nontestimonial” evidence is
gathered, this is essentially beyond police control. Their
saying that an emergency exists cannot make it be so. The
Confrontation Clause in no way governs police conduct,
because it is the trial use of, not the investigatory collection
of, ex parte testimonial statements which offends that
provision. But neither can police conduct govern the
Confrontation Clause; testimonial statements are what
they are.
Id. at 832 n.6, 165 L. Ed. 2d at 243 n.6 (emphasis in original).
The North Carolina Supreme Court first applied the approach established in
Davis in State v. Lewis, 361 N.C. 541, 648 S.E.2d 824 (2007). There, a police officer
responded to the victim’s call concerning a robbery at her apartment and took her
- 14 -
STATE V. MCKIVER
Opinion of the Court
statement, which included a description of the perpetrator, who the victim alleged
had also assaulted her during the robbery, which had occurred several hours earlier.
Id. at 543-44, 648 S.E.2d at 826. The victim was taken to the hospital to treat her
injuries and later that evening, she selected the defendant’s photograph from a
photographic line-up that another officer had assembled based in part on her
statement. See id. The victim died prior to trial, but the trial court allowed both
officers to testify about what the victim told them, and the defendant was convicted
of assault with a deadly weapon inflicting serious injury, robbery with a dangerous
weapon, and misdemeanor breaking and entering. See id.
On appeal, the defendant argued that the officers’ testimony violated her rights
under the Confrontation Clause. After applying the framework outlined in Davis, our
Supreme Court determined that at the time of her first statement, the victim “faced
no immediate threat to her person”; that the officer “was seeking to determine what
happened rather than what is happening”; that “the interrogation bore the requisite
degree of formality”; that the victim’s statement “deliberately recounted, in response
to police questioning, how potentially criminal past events began and progressed”;
and that the interrogation occurred “some time after the events described were over.”
Id. at 548, 648 S.E.2d at 829 (internal quotation marks omitted). The Court also
observed that “[a]lthough [the] defendant’s location was unknown at the time of the
interrogation, Davis clearly indicates that this fact does not in and of itself create an
- 15 -
STATE V. MCKIVER
Opinion of the Court
ongoing emergency.” Id. at 549, 648 S.E.2d at 829 (citation omitted). Consequently,
the Court held that the statements were testimonial, and thus inadmissible under
the Confrontation Clause, because the circumstances surrounding them objectively
indicated that no ongoing emergency existed and that “the primary purpose of the
interrogation was to establish or prove past events potentially relevant to a later
criminal prosecution.” Id. The Court ultimately concluded the defendant was entitled
to a new trial because “we cannot say beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained” and also because “we cannot
say beyond a reasonable doubt that the total evidence against [the] defendant was so
overwhelming that the error was harmless[,]” given that the identification of the
defendant as the perpetrator of the crimes alleged depended almost entirely on the
victim’s statements. Id. at 549, 648 S.E.2d at 830 (citations and internal quotation
marks omitted).
In the present case, the record before us does not include any recording or
transcript of the initial anonymous 911 call or the dispatcher’s call back. However,
McKiver’s counsel cross-examined Bramley extensively about these calls, and we find
particularly relevant the following excerpt from the trial transcript in which Bramley
testified about the statements made in the initial 911 call, as well as the actions he
took in response to it and his observations upon arriving at the scene:
Q. . . . When you arrived on the scene, there was just
the [Mercedes] and two guys up by the car; is that
- 16 -
STATE V. MCKIVER
Opinion of the Court
right?
A. Yes, sir, off to the left.
Q. Now, the original caller from 911 informed the
dispatch and you that there was a black guy outside
with a gun. Is that your understanding?
A. Yes, sir. We were informed that there was an
individual with a firearm and a possible dispute.
Q. Possible dispute.
A. Yes, sir.
Q. You were also told [by the dispatcher] that the caller
didn’t know if the person was pointing [the gun] at
anybody.
A. We weren’t advised whether or not they were
pointing it, sir, we just know that they—there was
someone with a firearm on-scene, as well as a
possible dispute outside. I don’t recall hearing
whether or not they were pointing it.
Q. Well, you listened to the 911 call, correct?
A. I have listened to it as of today, yes, sir.
Q. In fact, you’re the way that the State introduced that
into this trial; isn’t that correct?
A. Yes, sir.
Q. Okay. Do you recall then that dispatch asked, “Okay.
Is he pointing it at anyone?”
A. That’s correct.
Q. And the response was, “I don’t know.”
- 17 -
STATE V. MCKIVER
Opinion of the Court
A. That’s correct.
Q. “I got away from the window.” Then there’s a
question. Do you recall this? “Did you happen to see
what he’s wearing?” Do you recall that question?
A. Yes, sir.
Q. And her answer was, “No, I don’t know what he’s
wearing.” Do you recall that?
A. I do.
Q. And in addition to describ[ing] the scene, this caller
describing the scene, “Do you hear anything right
now? No, I just know they’re out there.” Do you recall
that?
A. Yes, sir.
Q. “Okay,” dispatcher says, “How many people were out
there?” And do you recall that she answered, “It was
people. I mean, it was just people outside. But he’s—
he’s—I don’t know what he’s doing” ?
A. Yes, sir.
Q. “Okay, I mean, was he, like, around people or
anything? He’s walking around.” Do you recall that?
A. Yes, sir.
Q. “Did you know what kind of gun? I don’t know, I just
saw a gun in his hand. It’s dark outside.” You didn’t
hear anything about waving the gun or brandishing
the gun, it was “I just saw a gun in his hand.” Isn’t
that correct as being your recollection?
A. That’s correct.
- 18 -
STATE V. MCKIVER
Opinion of the Court
Q. And she agreed with you, as you have described it
yourself, that it was dark outside.
A. That’s correct.
Q. Further question that was played here in the court
in the trial from dispatch, “Do you hear anything
else going on? Do you hear any arguments outside or
anything?” “Uh-uh” was her answer. Do you recall
that?
A. That’s correct.
Q. And she concludes, pretty close to the conclusion [of
the call], the dispatcher asks, “Do you want me to
stay on the line ‘til they get there?” talking about the
police units. And the caller’s response was, “No, I’ll
be fine.”
A. That’s correct.
Q. And when you arrived, those events appeared to
have already happened, is that correct?
A. Yes, sir.
Q. Because there was no black man with a gun
standing there in the street.
A. That’s correct.
Q. There was—there were no people standing in a
crowd around listening to music at that point; is that
correct?
A. That’s correct.
Q. It appeared that what [the caller] was describing
had already happened; is that correct?
- 19 -
STATE V. MCKIVER
Opinion of the Court
A. Yes, sir.
Q. She did not describe anything more about the person
she was observing, the clothing.
A. At that time, you’re correct. Yes, sir.
Q. When you arrived, it would appear that everything
was pretty quiet, pretty calm; is that correct?
A. Yes, sir.
Our review of the record demonstrates that the circumstances surrounding
both the initial 911 call and the dispatcher’s subsequent call back objectively indicate
that no ongoing emergency existed. Indeed, even before Bramley and other WPD
officers arrived on the scene, the anonymous caller’s statements during her initial
911 call—that she did not know whether the man with the gun was pointing his
weapon at or even arguing with anyone; that she was inside and had moved away
from the window to a position of relative safety; and that she did not feel the need to
remain on the line with authorities until help could arrive—make clear that she was
not facing any bona fide physical threat. Moreover, Bramley’s testimony on cross-
examination demonstrates that when he arrived at Penn Street, the scene was “pretty
quiet” and “pretty calm.” Although it was dark, Bramley and the other WPD officers
had several moments to survey their surroundings, during which time Bramley
encountered McKiver and determined that he was unarmed. While the identity and
location of the man with the gun were not yet known to the officers when Bramley
- 20 -
STATE V. MCKIVER
Opinion of the Court
requested the dispatcher to initiate a call back, our Supreme Court has made clear
that “this fact alone does not in and of itself create an ongoing emergency,” Lewis,
361 N.C. at 549, 648 S.E.2d at 829 (citation omitted), and there is no other evidence
in the record of circumstances suggesting that an ongoing emergency existed at that
time. We therefore conclude the statements made during the initial 911 call were
testimonial in nature.
We reach the same conclusion regarding the statements elicited by the
dispatcher’s call back concerning what kind of shirt the caller saw the man with the
gun wearing and the fact that someone saw the man drop the gun. Because these
statements described past events rather than what was happening at the time and
were not made under circumstances objectively indicating an ongoing emergency, we
conclude that they were testimonial and therefore inadmissible. In our view, this case
presents the same scenario the Davis Court cautioned against, insofar as what began
“as an interrogation to determine the need for emergency assistance . . . evolve[d] into
testimonial statements, . . . , once that purpose ha[d] been achieved.” 547 U.S. at 828,
165 L. Ed. 2d at 241. We emphasize that our conclusion here should by no means be
read as a condemnation of Bramley or the other WPD officers, who reacted
professionally and selflessly to a potentially dangerous situation. Nevertheless, as
Justice Scalia explained in Davis, the harm the Confrontation Clause aims to prevent
is the use of testimonial hearsay at trial, rather than its collection by law enforcement,
- 21 -
STATE V. MCKIVER
Opinion of the Court
and our inquiry on this issue is an objective one, rather than a determination from
an officer’s perspective. See id. at 832 n.6, 165 L. Ed. 2d at 243 n.6 (“While prosecutors
may hope that inculpatory “nontestimonial” evidence is gathered, this is essentially
beyond police control. Their saying that an emergency exists cannot make it be so.”).
Consequently, we hold that the trial court erred by denying McKiver’s motion in
limine to exclude the testimonial statements from the initial 911 call and the
dispatcher’s subsequent call back.
The State contends this error was harmless but provides no specific arguments
or citations to authority to support such a conclusion. At trial, the identification of
McKiver as the man who held and then dropped the gun depended almost entirely on
the testimonial statements elicited during the initial 911 call and the dispatcher’s
call back, and we cannot say beyond a reasonable doubt that the erroneous admission
of this evidence did not contribute to the jury’s verdict convicting McKiver of
possessing a firearm as a convicted felon, or that the remaining evidence against
McKiver, considered collectively, was “so overwhelming that the error was harmless.”
See Lewis, 361 N.C. at 549, 648 S.E.2d at 830 (citation omitted). Accordingly, we hold
that McKiver is entitled to a
NEW TRIAL.
Judges HUNTER, JR., and INMAN concur.
- 22 -