District of Columbia
Court of Appeals
No. 14-CM-208
OCT 13 2016
ANDREW WILLS,
Appellant,
v. DVM-2423-13
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: BECKWITH and MCLEESE, Associate Judges; and REID, Senior Judge.
JUDGMENT
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.
For the Court:
Dated: October 13, 2016.
Opinion by Associate Judge Corinne Beckwith.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CM-208
10/13/16
ANDREW WILLS, APPELLANT,
V.
UNITED STATES, APPELLEE.
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.
(Submitted January 7, 2015 Decided October 13, 2016)
Before BECKWITH and MCLEESE, Associate Judges, and REID, Senior Judge.
BECKWITH, Associate Judge: After a bench trial, the trial judge in this case
convicted appellant Andrew Wills of simple assault1 and attempted second-degree
1
D.C. Code § 22-404 (2012 Repl.).
2
theft2 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.
I.
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
2
D.C. Code §§ 22-1803, -3211, -3212 (b) (2012 Repl.).
3
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
3
According to Ms. Silas, neither the Mustang nor a red truck parked near it
was there two minutes earlier when she walked into the store to buy a snack.
4
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,
4
The government dismissed a third charge, destruction of property (for
allegedly throwing the complainant’s cell phone), at the close of its case.
5
that Mr. Wills took his wife’s keys with the intent to deprive her of those keys.
Mr. Wills timely appealed.
II.
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
5
Mr. Wills argues that the admission of the complainant’s other
statements—including “he’s got my keys” and “[y]ou need to get my keys”—also
violated his right to confrontation. Because our analysis of the “snatch[ing]”
statement is dispositive, we need not decide whether these other statements should
have been excluded.
6
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
7
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
8
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 emergency6—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 though the complainant looked back at Mr. Wills when
she walked toward the officer, Sergeant Parson did not approach the scene as
would an officer expecting to encounter armed and dangerous individuals, drawing
his gun, for example, or ordering Mr. Wills onto the ground or away from his wife.
6
Andrade v. United States, 106 A.3d 386, 389 (D.C. 2015) (that the
complainant “was crying and appeared obviously upset” provided “some support
for a finding of ongoing emergency”); Frye v. United States, 86 A.3d 568, 573
(D.C. 2014) (stating that the declarant’s “acute emotional distress” supported a
finding that her statement was nontestimonial).
9
Particularly after the complainant was standing with Sergeant Parson away from
Mr. Wills and immediately assured the officer that she was okay, the officer had no
grounds apparent from the record for thinking the complainant was still in danger.
By the time Sergeant Parson was questioning the complainant about how Mr. Wills
had come into possession of her keys, another officer was with Mr. Wills. See
Hammon, 547 U.S. at 831 (distinguishing testimonial statements in Hammon from
nontestimonial statements in Davis, which were taken when the complainant was
“unprotected by police” and thus “apparently in immediate danger from Davis”).
Sergeant Parson’s first question to the complainant—was she okay?—was
the sort that in some circumstances might be directed at a possible emergency.
Andrade v. United States, 106 A.3d 386, 390 (D.C. 2015) (noting that questions
“such as ‘Are you hurt?’; ‘Do you need medical attention?’; ‘Was a weapon
involved?’; or ‘Did he say anything about coming back or about harming anyone
else?’” are “questions specifically directed at possible emergencies”). Yet any
prospect that Sergeant Parson would need to act to protect the complainant or seek
medical treatment on her behalf faded when she said—and he saw—she was okay.
The officer’s next question—how did the man get the keys?—seems a
straightforward investigative inquiry, a “natural way[] for an investigating officer
to try to ‘establish or prove past events potentially relevant to later criminal
prosecution.’” Id. (quoting Davis, 547 U.S. at 822).
10
The government contends that Sergeant Parson’s question about how Mr.
Wills got his wife’s keys evinced an attempt to assess “whether or not appellant
was lawfully in possession of the keys or whether appellant had some sort of
weapon that he used to take possession of the keys—rather than preparation for a
future criminal prosecution.” Setting aside that Sergeant Parson never described
the purpose of his questioning that way,7 this observation actually bolsters Mr.
Wills’s position given the absence of any reason to think Mr. Wills was armed.
See Andrade, 106 A.3d at 389 (rejecting the government’s unsubstantiated
argument that the officer did not know “whether weapons had been involved” and
thus “needed to get an account from [the complainant] in order to determine
whether there was an emergency”); Bryant, 562 U.S. at 364 (noting the importance
of evidence regarding the presence of a weapon and the type of weapon to the
question whether there was an ongoing emergency). Similarly, the government’s
portrayal of Sergeant Parson as trying to determine whether Mr. Wills was in
lawful possession of the keys suggests the officer’s interest in investigating
criminal conduct that had already occurred, lending further support to the
7
Cf. Andrade, 106 A.3d at 390–91 (assuming without deciding that the
officer’s stated reasons for questioning the complainant were irrelevant while
noting that “the Supreme Court in Davis appeared to treat as relevant an officer’s
testimony about the purpose of police questioning”).
11
conclusion that “the primary, if not indeed the sole, purpose of the interrogation
was to investigate a possible crime.” Hammon, 547 U.S. at 830.
Considering the complainant’s actions and statements and the situation from
her perspective, her matter-of-fact answers to the officer’s questions—that yes she
was okay, that Sergeant Parson “need[ed] to get [her] phone” and “need[ed] to get
[her] keys,” and that Mr. Wills had snatched her keys—do not suggest an
emergency was under way. On the contrary, the complainant’s statement that Mr.
Wills had taken her property was a straightforward reporting of a past event that
police had a duty to investigate. See Hammon, 547 U.S. at 830 (“[I]nvestigat[ing]
a possible crime . . . is, of course, precisely what the officer should have done.”).
The government argues that the fact that the complainant said nothing to the police
about the assault against her shows that she was “merely attempting to gain the
police’s assistance to leave a volatile situation,” not “attempting to make a record
for a future trial.” The more objective (and less speculative) relevance of that
omission to the Confrontation Clause analysis, however, is that it tends to show
that the complainant was not specifically seeking physical protection or medical
assistance when she was responding to the officer’s questions. See Andrade, 106
A.3d at 391 (“[The complainant] did not request medical assistance, ask the police
to take any other emergency steps, or communicate any other information
indicating that there was an ongoing emergency. Rather, [she] simply described
12
the circumstances of the earlier incident.” (citations omitted)). As Sergeant Parson
pointed out, another officer promptly conducted “a more thorough interview”—an
interview that was not introduced at trial and that the government in its brief
concedes “potentially would have been closer to the ‘testimonial’ line.” The
government is not contending, therefore, that Mr. Wills’s wife never mentioned the
assault to police on the scene, only that she did not mention it at the outset to
Sergeant Parson. Moreover, the government’s acknowledgement that the second
officer’s interview may have produced testimonial statements is telling given that it
was conducted in the immediate wake of the statement at issue in this appeal and
inevitably shared most if not all of the hallmarks of the initial questioning.
The circumstances of this case most relevant to the Confrontation Clause
analysis replicate those in the Supreme Court’s decision in Hammon. In Hammon,
when police arrived at the home of Hershel and Amy Hammon after a report of a
“domestic disturbance,” they found Amy on the front porch—appearing
“somewhat frightened” but telling police that “nothing was the matter”—and
Hershel in the kitchen. 547 U.S. at 819. They also saw, in the corner of the living
room, a gas heating unit with pieces of glass on the floor in front of it and flames
coming out of the front of the unit. Id. Hershel told police that he and Amy had
been in an argument but that “everything was fine now” and that it “never became
physical.” Id. When another officer went to the living room to talk to Amy,
13
Hershel “made several attempts to participate in Amy’s conversation with the
police” and “became angry” when police kept them separated. Id. at 819–20.
Amy told the officer what had happened, then penned a handwritten affidavit
indicating that Hershel had broken the furnace and shoved her down into the
broken glass. Id. at 820. Amy did not appear at Hershel’s trial on domestic battery
charges, but he was convicted after the government presented the officer’s
testimony about what Amy told him had happened and Amy’s affidavit to the
judge presiding at the bench trial. Id. at 820–21.
The Supreme Court held that it was “entirely clear” from these
circumstances “that the interrogation was part of an investigation into possibly
criminal past conduct.” Id. at 829. In reaching that conclusion, the Court
emphasized several circumstances that are also present here: though Hershel
Hammon was present, there was “no emergency in progress,” there was “no
immediate threat to [the complainant’s] person,” and the complainant told police
she was all right. Id. at 829–30. The officer’s questions—like Sergeant Parson’s
question here about how Mr. Wills got the keys—sought to determine “what
happened” rather than “what is happening.” Id. at 830. Here, as in Hammon, the
complainant’s statement “took place some time after the events described were
over” and “deliberately recounted, in response to police questioning, how
potentially criminal past events began and progressed.” Id. “Such statements
14
under official interrogation are an obvious substitute for live testimony, because
they do precisely what a witness does on direct examination; they are inherently
testimonial.” Id. (emphasis omitted).
The government contends that Hammon is distinguishable because the police
there saw no emergency in progress or immediate threat to the complainant. But
we have already concluded the same is true here. Noting that Amy Hammon had
assured police that everything was fine, id. at 819, the government also suggests
that Amy’s statements were more deliberate and that more time passed before she
uttered them. The cases are factually more alike than the government allows,
however. Mr. Wills’s wife also told police that she was okay. And the
interrogation in both cases took place on the scene not long after the offense each
complainant was describing. When the Supreme Court noted that “Amy’s
narrative of past events was delivered at some remove in time from the danger she
described,” its focus was more on the fact that the incident was over than that it
was long over. Id. at 832; see id. at 830 (noting that Amy Hammon’s statement
“took place some time after the events described were over”); see also, e.g., id. at
829 (noting that when police arrived, they “heard no arguments or crashing and
saw no one throw or break anything”). Several factual differences only paint the
situation in Hammon as more potentially volatile than that here. Unlike in
Hammon, for example, where Hershel Hammon was angry and trying to interfere
15
with the officer’s questioning of his wife, the record here is devoid of evidence that
Mr. Wills was disruptive or dangerous. And Amy Hammon’s statements that
“nothing was the matter” and that “things were fine” were less than reassuring
when there were flames coming out of the broken heating unit and pieces of glass
strewn about the living room floor. Id. at 819, 830.
And finally, the statements that the Supreme Court found to be testimonial in
Hammon were not more deliberate than the statement at issue here. As an initial
matter, informal statements in response to police questioning can be testimonial
“whether reduced to a writing signed by the declarant or embedded in the memory
(and perhaps notes) of the interrogating officer,” id. at 826, and the Court held in
Hammon that Amy Hammon’s initial oral statements, not just her subsequent
written affidavit, were admitted in violation of the Confrontation Clause. Id. at
830–32. The Court also emphasized that Amy’s statements were testimonial even
though her questioning was far less formal than the tape-recorded stationhouse
interrogation at issue in Crawford. See id. at 830 (citing Crawford, 541 U.S. at 53
n.4).
“Whether formal or informal, out-of-court statements can evade the basic
objective of the Confrontation Clause, which is to prevent the accused from being
deprived of the opportunity to cross-examine the declarant about statements taken
16
for use at trial.” Bryant, 562 U.S. at 358. In our recent decision in Andrade v.
United States, that constitutional objective was evaded where the police, having
arrived at the scene less than five minutes after receiving a 911 call about a
domestic assault, promptly asked a crying and still upset complainant what had
happened. 106 A.3d at 387–88. The “relatively informal” nature of the police
questioning in Andrade did not preclude the complainant’s statements in response
to that questioning from being deemed testimonial, id. at 389, 391, 393, and it does
not preclude us from reaching the same conclusion based on the comparable
interrogation of the complainant here. Sergeant Parson’s on-the-scene question
about “how [Mr. Wills] got the keys” may not have been especially formal, but the
complainant’s response, that Mr. Wills “snatched” her keys from her, shares with
Hammon and Andrade the critical characteristic that it deliberately reported—in
response to a police officer’s question—how a “potentially criminal past event[]”
occurred.
The government contends that this court’s decision in Frye v. United States,
86 A.3d 568 (D.C. 2014), establishes that the complainant’s statement was not, in
fact, testimonial. But as the Supreme Court has made clear, whether a statement is
nontestimonial—that is, made in response to an ongoing emergency—is a “highly
17
context-dependent inquiry,” Bryant, 562 U.S. at 363, and the context in which the
complainant in Frye made her statements differs markedly from that in this case.8
After receiving a call from a child about an assault involving the child’s parents,
the police in Frye arrived at the house to find five children downstairs and a man
and a woman a foot apart at the top of the stairs shouting at each other as the
woman backed away nervously and the man paced back and forth with his fist
clenched up. 86 A.3d at 569. Though the police separated the pair, they were still
close to each other when an officer asked the complainant what happened. The
complainant was shaking and crying when she responded, had visible abrasions on
her arms and neck, and appeared to need medical treatment. Id. at 570. Nearby,
the man had his fists balled up and was speaking loudly to another officer. Id. The
officer who spoke to the woman testified that at the time he had no information
about how many people were involved in the assault, who the perpetrator was, or
8
Bryant states that “there may be other circumstances, aside from ongoing
emergencies, when a statement is not procured with a primary purpose of creating
an out-of-court substitute for trial testimony.” 562 U.S. at 358. The government
focuses on the ongoing-emergency ground, however, and we are unaware of any
other ground on which the statements in this case could have been nontestimonial.
See, e.g., United States v. Polidore, 690 F.3d 705, 718 (5th Cir. 2012) (statements
nontestimonial when made to “request police assistance in stopping an ongoing
[drug trafficking] crime” even though no “ongoing emergency”); cf. Frye, 86 A.3d
at 571 (noting that “the existence of [an ongoing] emergency ‘is among the most
important circumstances’ to be considered in making that determination’”)
(quoting Bryant, 562 U.S. at 361, 370).
18
whether any weapons were involved. Id.
Most of the facts the court in Frye deemed critical to its determination that
the complainant’s statements to police were not testimonial are not present here—
specifically, that the officers arrived to find a “heated dispute” still in progress, that
the situation was “fluid and somewhat confused,” id. at 571–72 (quoting Bryant,
562 U.S. at 377), that there were five children in the house who were possibly in
danger or in need of “assistance from a social services agency,” and that the
complainant had visible injuries that required medical treatment, id. at 572–73.
Although the court in Frye also relied upon the complainant’s distraught condition,
Frye, 86 A.3d at 572; see also Davis, 547 U.S. at 818, and here, Mr. Wills’s wife
was likewise crying and upset, the complainant’s demeanor took on more
significance in Frye where a still active quarrel required officers to “clarify what
exigencies . . . existed requiring immediate action,” and where officers had not
“completely subdued” the suspect even by the time they led him out of the house,
86 A.3d at 572–73 (noting that the man “kicked luggage and other items on the
way out”). In cases lacking such confusion, evidence that a complainant was
distressed has not defeated a Confrontation Clause claim. In Andrade, for
example, the complainant’s visible distress was insufficient to render her
statements nontestimonial when “a number of considerations point[ed] in the
opposite direction.” 106 A.3d at 389. Here, as in Andrade, “[t]he conclusion that
19
the questioning in Frye had the primary purpose of addressing an ongoing
emergency thus does not support the same conclusion in the present case.” Id. at
393; see also Hammon, 547 U.S. at 819, 832 (holding that the “somewhat
frightened” complainant’s on-the-scene statements were testimonial).
Considering the totality of the circumstances in this case, we are persuaded
that Sergeant Parson did not ask his question about “how [Mr. Wills] got the keys”
for the primary purpose of enabling police to deal with an ongoing emergency, and
Mr. Wills has therefore satisfied the first prong of the plain error test by
demonstrating that the complainant’s statement in response to that question was
testimonial for purposes of the Confrontation Clause.
B. Plainness
We next address whether this error was plain. An error is plain when it is
“clear or obvious, rather than subject to reasonable dispute” under current law. In
re Taylor, 73 A.3d 85, 99 (D.C. 2013) (quoting Puckett v. United States, 556 U.S.
129, 135 (2009)). We assess plainness in light of the state of the law at the time of
appellate review, not the state of the law at the time of trial. Muir v. District of
Columbia, 129 A.3d 265, 267 (D.C. 2016); Taylor, 73 A.3d at 99; see also
Henderson v. United States, 133 S. Ct. 1121, 1129–30 (2013) (“[P]lain-error
review is not a grading system for trial judges.”).
20
The government makes no separate and specific argument in its brief about
the plainness of the error, but there is no reasonable dispute that the Supreme
Court’s case law—most notably Hammon—compels the conclusion that the
statement at issue here was testimonial. Where no emergency was in progress
when the police arrived, the complainant was distraught but told police she was
okay and showed no signs of injury, the suspect was not armed and was separated
from the complainant when she made the statement, and the complainant’s
statement in response to police questioning described a past incident, it is “clear
and obvious” that the oral statement the complainant made to the police about Mr.
Wills “snatch[ing]” her keys was testimonial.
No subsequent cases in the Supreme Court or this court have complicated or
cast doubt upon the Hammon Court’s conclusion that the testimonial nature of
statements provided in circumstances closely akin to those here is clear-cut.
Though the government relies more on our decision in Frye than on the Supreme
Court’s fairly recent decision in Michigan v. Bryant, it is important to note, in
assessing plainness, that nothing in the Supreme Court’s decision in Bryant—
which rejected Mr. Bryant’s claim that the statements of a dying victim of a
gunshot wound to a responding police officer were testimonial—purported to
change or narrow the Court’s holding in Hammon. The Court instead took pains to
distinguish Hammon on the grounds that the case involved “a neutralized threat,”
21
“a known and identified perpetrator” who was unarmed and had not caused serious
injury, and a domestic-violence situation, which often meant “a narrower zone of
potential victims than cases involving threats to public safety.” 562 U.S. at 363–
64. In each respect, the same is true here.
Our own precedent reinforces Hammon’s continued bearing on domestic
abuse cases where the police had separated the unarmed suspect from the
complainant, there was no sign of injury, and the complainant responded to
informal on-the-scene police questioning by describing aspects of an incident that
had just occurred. Andrade, this court’s most recent case addressing a Crawford
ongoing-emergency question, confirmed the view that Bryant did not change the
constitutional landscape in domestic abuse cases such as Andrade and the present
case. Andrade, 106 A.3d at 392 (noting that Bryant “distinguished its earlier
holding in Hammon” by “explaining that the statements deemed testimonial in
Hammon arose in the context of a domestic-violence assault that involved neither a
weapon nor serious injury”) (citing Bryant, 562 U.S. at 364). And Andrade’s
distinguishing of Frye, this court’s other recent ongoing-emergency decision,
makes clear that Frye did not signal a more expansive view of what constitutes an
ongoing emergency after Bryant, and that its holding stemmed instead from its
unique and “very different circumstances.” Id. at 392–93. And while Andrade
involved a suspect who had left the scene, Andrade’s own holding that a
22
complainant’s statements to police were testimonial under circumstances that were
otherwise very similar to this case independently supports Mr. Wills’s argument
that the error here was plain.9 Factually similar cases in other jurisdictions further
bolster that contention. See, e.g., State v. Lucas, 965 A.2d 75, 85–86 (Md. 2009)
(holding that a domestic-violence complainant’s responses to questions about
“what happened” and “where she got the marks” were testimonial where the
complainant was crying and upset and had red marks on her neck, but where the
complainant was separated from the defendant during the questioning); Zapata v.
State, 232 S.W.3d 254, 256–57, 260 (Tex. App. 2007) (same where the
complainant was “crying and shaking” during questioning and had scratches on her
neck and a large bruise on her arm, but where the complainant was separated from
the defendant during questioning); Commonwealth v. Galicia, 857 N.E.2d 463,
467, 470 (Mass. 2006) (same where officers arrived to find the door to the
complainant’s apartment open, several chairs turned over, and the complainant
visibly upset, with scratches on her face, but where the complainant was separated
9
Andrade also provides an example of a case in which this court found a
domestic-abuse complainant’s statements to be testimonial in circumstances where
the officer’s questioning was unstructured and informal. This lends clear and very
recent support to our conclusion that the fact that the complainant in Hammon
formalized her initial oral statements in an affidavit carries little weight in this
case, particularly as the oral statements’ admission into evidence against Hershel
Hammon independently violated the Confrontation Clause. 547 U.S. at 830–32.
23
from the defendant during questioning).
That the ongoing-emergency inquiry is “highly context-dependent” does not
preclude a determination that the Confrontation Clause error here is beyond
reasonable dispute, as “the ‘plainness’ of the error can depend on well-settled legal
principles as much as well-settled legal precedents.” Conley v. United States, 79
A.3d 270, 290 (D.C. 2013); see also Arthur v. United States, 986 A.2d 398, 412
(D.C. 2009) (“[T]rial judges are presumed to know and apply the legal principles
enunciated in appellate decisions, and not simply to match factual scenarios, as few
cases present the same facts.”); cf. Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(explaining, in the federal habeas corpus context, that a court’s “misappli[cation]
[of] a ‘governing legal principle’” can be grounds for a finding that the court
unreasonably applied clearly established law, even where the case involves “a set
of facts different from those of the case in which the principle was announced”)
(quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)). In this case, the principles
and the precedents align. If it was “entirely clear” to the Hammon Court that Amy
Hammon’s statements were testimonial, Hammon, 547 U.S. at 829, it is also clear
that the statement at issue here was testimonial. Cf. id. (calling it a “much easier
task” to evaluate the testimonial character of Amy Hammon’s statements “since
they were not much different from the statements [the Court] found to be
testimonial in Crawford”).
24
C. Substantial Rights
To establish that this error affected Mr. Wills’s substantial rights, Mr. Wills
must show “a reasonable probability that the Confrontation Clause violation had a
prejudicial effect on the outcome of his trial.” Thomas v. United States, 914 A.2d
1, 21–22 (D.C. 2006) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81–
82 (2004)). Here, the complainant’s statement “was the main, if indeed not the
only, proof offered by the prosecution,” id. at 22, to establish that Mr. Wills took
the property of another with intent to deprive the other of the property, see D.C.
Code § 22-3211 (b) (2012 Repl.). In finding that “the Government has proved
beyond a reasonable doubt that [Mr. Wills] attempted to deprive [the complainant]
permanently of the keys,” the trial court relied only on Sergeant Parson’s testimony
“that as the woman came towards him, she looked back over her shoulder at the
man and said, ‘You need to get my keys, he took my keys’” 10 and on evidence that
“the keys were later recovered by a different officer from somewhere on or near
the defendant.”
10
“[H]e took my keys”—a paraphrase of the complainant’s statement “[h]e
snatched them from me”—constitutes direct evidence that Mr. Wills had
wrongfully obtained the keys from the complainant. The complainant’s other
statements about her keys indicated only that Mr. Wills had them in his possession
and that the complainant wanted the police to retrieve them.
25
The trial evidence included two other references to the complainant’s keys
not mentioned by the judge in her verdict. The anonymous 911 caller who
witnessed the incident stated that the perpetrator threw a set of car keys “over onto
the highway,” and on cross-examination Ndya Silas disagreed with defense
counsel’s statement that she “didn’t see keys get taken.”11 Such evidence is far
from compelling. Assuming the person the anonymous caller mentioned was Mr.
Wills, his statement does not say whose keys they were, how Mr. Wills came to
possess them, or to what extent the keys’ owner (if not Mr. Wills) was actually
deprived of possession when keys landed in the street. Nor did Ms. Silas’s
testimony add much to this picture, as she did not suggest who took the keys from
whom or how they were taken, and she admitted she did not know whose keys they
were. Given the government’s otherwise thin case on theft, we cannot conclude
that the erroneous admission of the complainant’s statement about Mr. Wills
11
The prosecutor elicited no testimony about keys from Ms. Silas on direct
examination. On cross-examination the colloquy went as follows:
Q: You didn’t see a phone get thrown, did you?
A: No.
Q: You didn’t see keys get taken, did you?
A: Yes.
Q: You don’t know whose keys they were?
A: No.
26
“snatch[ing]” her keys was harmless. In re Ty.B., 878 A.2d 1255, 1266 & n.18
(D.C. 2005) (citing Fox v. United States, 421 A.2d 9, 14 (D.C. 1980)). There is at
least “a reasonable probability that the Confrontation Clause violation had a
prejudicial effect on the outcome” of Mr. Wills’s trial on the attempted theft
charge, Otts v. United States, 952 A.2d 156, 161 (D.C. 2008), and therefore Mr.
Wills’s substantial rights were affected by the constitutional error. 12
12
We nevertheless reject Mr. Wills’s challenge to the sufficiency of the
evidence underlying the attempted theft conviction. When it includes the
complainant’s improperly admitted statement, the government’s proof of attempted
theft was constitutionally sufficient. See Thomas v. United States, 557 A.2d 599,
601 (D.C. 1989) (en banc) (citing Lockhart v. Nelson, 488 U.S. 33, 40–42 (1988))
(holding that a reviewing court addressing a challenge to the denial of a motion for
judgment of acquittal considers the same erroneously admitted evidence that was
considered by the trial court). Though admitted into evidence in violation of the
Confrontation Clause, the evidence that the complainant told Sergeant Parson that
Mr. Wills had “snatched” her keys, combined with the evidence that the
complainant sought assistance in retrieving them, is sufficient to establish that Mr.
Wills tried to wrongfully obtain another person’s property of some value with the
intent to deprive her of the right to or benefit of that property. See D.C. Code
§§ 22-1803, -3211 (b)(1)–(2), -3212 (b) (2012 Repl.). Mr. Wills argues that the car
and the keys were marital property, jointly owned by Mr. Wills and the
complainant. But other than Sergeant Parson’s testimony that “the complainant . . .
identified Mr. [Wills] as her husband,” there is no evidence in the record to support
this argument. And according to Sergeant Parson’s testimony, the complainant
described the keys as “my keys” (emphasis added). Mr. Wills also argues that
there is no evidence in the record that the keys had value. But a reasonable
factfinder could infer that the keys had at least some value in light of their capacity
to unlock and start the yellow Mustang. See Jeffcoat v. United States, 551 A.2d
1301, 1303 (D.C. 1988) (“[T]he value of an item is to be determined by its ‘useful
(continued…)
27
With respect to Mr. Wills’s conviction for assault, we conclude that the
erroneous admission of the testimonial statement did not affect Mr. Wills’s
substantial rights. This is so even if we assume that the complainant’s other
statements, see supra note 5, were also testimonial and thus improperly admitted.
The complainant’s statements, as recounted by the officer, did not provide any
evidence of an assault; the assault conviction was based on Ms. Silas’s testimony
and the anonymous 911 call. Mr. Wills argues that his wife’s statement that he
took her keys was the only evidence linking him to Ms. Silas’s testimony, as Ms.
Silas did not identify him as the perpetrator of the assault she witnessed. But the
timing of Ms. Silas’s 911 call, the officers’ arrival at the scene, and Ms. Silas’s
departure from the scene is strong evidence that Mr. Wills and his wife were the
two individuals involved in the incident Ms. Silas witnessed. The similarities
between the descriptions given by Ms. Silas and the anonymous 911 caller also
support a reasonable inference that Mr. Wills and his wife were the individuals
involved in the assault witnessed by the anonymous caller. We conclude that as to
the assault conviction, Mr. Wills has failed to satisfy the third prong of the plain
error test. For the same reasons, we reject Mr. Wills’s challenge to the sufficiency
(…continued)
functional purpose.’” (quoting Jenkins v. United States, 374 A.2d 581, 586 n.9
(D.C. 1977))).
28
of the evidence underlying his assault conviction.
D. The Fairness, Integrity, or Public Reputation of the Trial
If the first three parts of the plain error test are satisfied, we “exercise [our]
discretion to correct the error” when the error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Thomas, 914 A.2d at 22
(quoting Johnson v. United States, 520 U.S. 461, 470 (1997)). The government
makes no fourth-prong argument in its brief.
In Thomas v. United States and Otts v. United States, this court held that a
Confrontation Clause violation did not satisfy the fourth prong of the plain-error
test when the trial court erroneously admitted a DEA chemist’s report that a
particular substance was cocaine and there was “no reason whatsoever to believe
that the chemist’s report was unreliable.” Thomas, 914 A.2d at 22–24; Otts, 952
A.2d at 162–63. In contrast, this court has held that when a trial court bases its
verdict entirely on officers’ testimony regarding a complainant’s out-of-court
statements, a Confrontation Clause violation “would seriously affect the fairness
and integrity of the proceedings.” Drayton v. United States, 877 A.2d 145, 148–49
(D.C. 2005).
Although this is a case-by-case inquiry, Thomas, 914 A.2d at 23, the
29
principle in Drayton informs our analysis here. This is not a case like Thomas, in
which the evidence of guilt was “essentially uncontroverted” and “overwhelming.”
914 A.2d at 22 (quoting Johnson v. United States, 520 U.S. 461, 470 (1997)).
Without the complainant’s testimonial statement, the evidence of attempted theft
was meager, if not legally insufficient, and to allow a conviction to stand in such
circumstances “would seriously call into question the fairness and integrity of these
proceedings.” United States v. Bruno, 383 F.3d 65, 80–81 (2d Cir. 2004); United
States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004). The unfairness of leaving the
Confrontation Clause violation without a remedy is more pronounced still where
the government’s proof that Mr. Wills committed the offense of attempted theft
consisted almost entirely of unconfronted out-of-court statements—namely, the
complainant’s statements to Sergeant Parson and the anonymous 911 caller’s
reference to Mr. Wills throwing car keys.13 “The perception that confrontation is
essential to fairness has persisted over the centuries because there is much truth to
it,” and “the right to face-to-face confrontation . . . ‘ensur[es] the integrity of the
fact-finding process.’” Coy v. Iowa, 487 U.S. 1012, 1019–20 (1988) (quoting
Kentucky v. Stincer, 482 U.S. 730, 736 (1987)). We conclude that the erroneous
13
Trial counsel unsuccessfully challenged the 911 call on Confrontation
Clause grounds but Mr. Wills has not presented that claim on appeal.
30
admission of Mr. Wills’s wife’s statement seriously affected the fairness, integrity,
and public reputation of the proceedings in this case.
III.
Having determined that Mr. Wills has satisfied the requirements for plain
error, we reverse his conviction for attempted theft and remand to the Superior
Court for further proceedings.14 Mr. Wills’s assault conviction is affirmed.
So ordered.15
14
At least as to the theft conviction, therefore, we need not consider Mr.
Wills’s alternative argument—not raised at trial—that the trial court erred by
failing to make a missing witness inference adverse to the government. As to the
assault conviction, Mr. Wills cannot establish that any error in this regard would
have affected his substantial rights where an adverse inference would not have
undermined the main evidence of assault, which came from two neutral 911 callers
who gave similar descriptions of the incident, not from any of the complainant’s
own statements. See Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006).
15
The government notes in its brief that certain docket entries and the
judgment and commitment order in this case indicate that Mr. Wills was convicted
of destruction of property rather than attempted theft. This clerical error should be
corrected on remand.