State v. Soliz

Certiorari Granted, No. 31,813, July 29, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-079

Filing Date: June 12, 2009

Docket No. 28,018

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

JOSEPH SOLIZ,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Joel Jacobsen, Assistant Attorney General
Albuquerque, NM

for Appellant

Hugh Dangler, Chief Public Defender
Adrianne R. Turner, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION

VANZI, Judge.

{1} This interlocutory appeal follows from the district court’s pre-trial ruling that Celina
Gallegos’s (Gallegos) statements to a 911 operator that Joseph Soliz (Defendant) had just
violently attacked her were inadmissible under the Confrontation Clause of the Sixth
Amendment to the United States Constitution. The district court appears to have concluded

1
that Gallegos’s statements during the 911 call were testimonial in nature, pursuant to Davis
v. Washington, 547 U.S. 813 (2006), and thus the transcript of Gallegos’s 911 call is
inadmissible under Crawford v. Washington, 541 U.S. 36 (2004). We reverse and, without
ruling on any other facet of the admissibility of Gallegos’s statements, hold that her
statements during the 911 call are nontestimonial in nature and thus do not violate
Defendant’s rights under the Sixth Amendment.

BACKGROUND

{2} Defendant was indicted by a grand jury in the Third Judicial District Court on the
following four counts: one count of aggravated battery against a household member with
a deadly weapon; two counts of aggravated assault against a household member with a
deadly weapon; and one count of battery against a household member. Defendant was
subsequently arraigned and entered a plea of not guilty.

{3} The charges against Defendant stemmed from events occurring on June 25, 2006.
On that date, Gallegos (Defendant’s girlfriend and cohabitant) initiated a 911 call from a
neighbor’s house and, in the course of that call, reported that Defendant had just violently
attacked her with a heavy metal pole. The seven-page transcript of that call, which
Defendant agreed was authenticated and accurate, is attached as an appendix to this opinion.

{4} Defendant was successfully indicted and scheduled for trial. However, repeated
attempts by both the State and counsel for Defendant to contact Gallegos and secure her
participation as a witness in the criminal prosecution of Defendant failed. As a result, the
district court excluded Gallegos as a witness. The parties do not contest this ruling and do
not dispute that Gallegos was unavailable.

{5} In light of Gallegos’s unavailability, Defendant submitted two separate motions in
limine. The motions are premised on a single underlying legal assertion: that Gallegos’s
statements during the 911 call are testimonial, as defined in Davis, and thus the transcript
in its entirety is inadmissible pursuant to Crawford. During the hearing on the first motion,
the State maintained that the transcript was admissible up to page five, up to the point at
which Gallegos provides the 911 operator a call-back number. Up to that point, the State
claimed that Gallegos’s statements concerned an ongoing emergency and thus were
nontestimonial and posed no Confrontation Clause problem. The State was unconcerned
with the portions of the transcript following page five as, the State contends, it contains mere
“repetition.” The district court ruled that it would “allow the admission of the [911] tape up
to page five” and set a hearing for argument concerning further redaction of the content of
those five pages.

{6} During the second hearing, Defendant reasserted his objection, citing Crawford and
Davis, that the transcript is inadmissible in its entirety. In the alternative, and in light of the
district court’s ruling that the first five pages of the transcript of the 911 call were
admissible, Defendant sought redaction of certain statements recorded in those five pages.

2
Pursuant to Defendant’s argument in the alternative, the district court began evaluating the
transcript line-by-line and found certain statements made by Gallegos inadmissible.
However, the parties’ disagreement over the meaning of Davis and the application of the
principles announced therein soon became intractable. Accordingly, the district court
discontinued its line-by-line examination and, presumably persuaded by Defendant’s
arguments, reversed its previous ruling and summarily concluded—without
explanation—that the transcript was inadmissible in its entirety. In response to this ruling,
the State requested certification for interlocutory appeal. That request was granted and
forms the basis of this appeal.

DISCUSSION

Standard of Review

{7} The State’s interlocutory appeal requires us to review the admissibility of Gallegos’s
statements, as recorded in the 911 transcript, in light of Defendant’s objections that
admission of those statements would violate the Confrontation Clause of the Sixth
Amendment to the United States Constitution. “We apply a de novo standard of review as
to the constitutional issues related to [the d]efendant’s rights under the Confrontation
Clause.” State v. Massengill, 2003-NMCA-024, ¶ 5, 133 N.M. 263, 62 P.3d 354.

The Sixth Amendment and Crawford

{8} The Confrontation Clause of the Sixth Amendment to the United States Constitution
provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The United States Supreme
Court’s Sixth Amendment jurisprudence was altered fundamentally following the issuance
of Crawford. There, after a lengthy discussion of the history of the Sixth Amendment, the
Court concluded that “where testimonial evidence is at issue, . . . the Sixth Amendment
demands . . . unavailability and a prior opportunity for cross-examination.” Crawford, 541
U.S. at 68. Thus, the Crawford Court held that when the declarant is unavailable, out-of-
court statements that are testimonial are inadmissible even if they meet an exception to the
hearsay rules. Id. at 54. In the present matter, it was undisputed that Gallegos is unavailable
and Defendant had not had an opportunity to cross examine her. The question we must
resolve, then, is whether Gallegos’s statements during the 911 call (as recorded in the
transcript of that call) are testimonial in nature.

{9} In Crawford, the United States Supreme Court did not establish a comprehensive
definition for the term “testimonial,” 541 U.S. at 68, a necessary prerequisite to provide
courts adequate guidance in identifying a testimonial statement. Rather, it left “for another
day any effort to spell out” such a definition and concluded that “[w]hatever else the term
covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand
jury, or at a former trial; and to police interrogations.” Id. The issue presented in
Davis—“whether . . . [an] interrogation that took place in the course of [a] 911 call produced

3
testimonial statements,” Davis, 547 U.S. at 826—required the Court to “more precisely”
define the term testimonial and the qualities that render a statement testimonial in nature.
Id. at 822.

{10} This Court and our Supreme Court have previously adopted and discussed the
principles established in Davis. See, e.g., State v. Lopez, 2007-NMSC-037, ¶¶ 20-21, 142
N.M. 138, 164 P.3d 19 (discussing the admissibility of non-testifying co-defendants’
custodial statements); State v. Romero, 2007-NMSC-013, ¶¶ 4-17, 141 N.M. 403, 156 P.3d
694 (evaluating an unavailable witness’s statements to a sexual assault nurse examiner in
light of Davis and concluding that the statements in question were testimonial in nature).
The present matter, however, requires us, as a matter of first impression, to evaluate the
principles announced in Davis in the context of statements elicited during a 911 call. As it
is from Davis that we derive analytical guidance to resolve the current matter, it is to Davis
we turn.

Davis and the Definition of Testimonial

{11} Davis consolidated two appeals: Davis v. Washington, a case from the Supreme
Court of Washington, and Hammon v. Indiana, a case from the Indiana Supreme Court.
Davis, 547 U.S. at 817-21. In both cases, the state supreme courts allowed incriminating
statements of unavailable victims into evidence over the defendants’ objections that
admission of such evidence violated the Confrontation Clause of the Sixth Amendment to
the United States Constitution. Id. at 819, 821. The facts of Davis, the Washington case, are
similar to the present matter: a victim of domestic violence (Michelle McCottry) called 911
after she was attacked by the defendant (her former boyfriend). Id. at 817-18. During the
call, McCottry informed the operator of the identity of the defendant and described the
attack. Id. McCottry did not participate in the subsequent criminal trial and, in her absence,
the state submitted a recording of the 911 call. Id. at 819. In Hammon, the Indiana case, the
victim (Amy Hammon) was violently attacked by the defendant (her husband) at their home.
Id. at 819-20. After receiving a domestic disturbance report, the police arrived on the scene
shortly after the incident. Id. at 819. Hammon described the violence that the defendant
committed to one of the police officers. Id. at 819-820. Like McCottry, Hammon also did
not participate in the criminal trial that ensued. Id. at 820. In light of this fact, the court
permitted the officer who spoke to Hammon to recount what she told him during the
defendant’s trial. Id. After setting forth additional clarification regarding what constitutes
a testimonial statement, the United States Supreme Court highlighted the factual distinctions
between the two cases and concluded that McCottry’s statements were nontestimonial in
nature, id. at 828-29, whereas Hammon’s were testimonial in nature. Id. at 829-30. That
additional clarification is the key to resolving the present matter and is discussed below.

{12} The Court in Davis recognized the futility of attempting to comprehensively classify
what is, and is not, a testimonial statement. Id. at 822 (acknowledging the infinite variety
of statements a person might make in response to police interrogation). Rather, the Court
concluded that the following distinction sufficed:

4
 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. 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 prosecution.

Id. Having established this definitional distinction between testimonial and nontestimonial
statements, the Court explained that the determination of the admissibility of McCottry’s and
Hammon’s statements was based on whether their statements were given primarily to permit
the police to respond to an emergency, or were given for purposes of establishing past acts
for purposes of a subsequent criminal prosecution. Id. at 826-28. The former category of
statements, the Court instructed, is nontestimonial and thus presents no Confrontation Clause
problem. See id. at 821, 828. The latter category is testimonial and is thus inadmissible
pursuant to Crawford. See Davis, 547 U.S. at 821, 829.

{13} In addition to providing a definitional distinction between nontestimonial and
testimonial statements, the Court in Davis identified four factors to guide courts in their
assessment of the category into which a statement falls. Id. at 827. The Court observed that
a statement is likely nontestimonial if (1) the individual is describing events as they are
actually happening rather than describing past events; (2) the individual is facing an ongoing
emergency; (3) when viewed objectively, the elicited statements are necessary to resolve a
present emergency rather than simply to learn what had happened in the past; and (4) the
individual’s statements were not made in the safety of a station house or in response to a
series of questions with an officer-interrogator taping and making notes but were provided
over the phone in an environment that was neither tranquil nor safe. Id. In a footnote
preceding the Court’s discussion of these four factors, the Court stressed that “it is in the
final analysis the declarant’s statements, not the interrogator’s questions, that the
Confrontation Clause requires us to evaluate.” Id. at 822 n.1.

{14} The Court also observed that, given the nature of 911 calls, a 911 call or transcript
of that call may contain both testimonial and nontestimonial statements. “This presents no
great problem,” the Court explained. Id. at 829. “[C]ourts will recognize the point at which,
for Sixth Amendment purposes, statements in response to interrogations become testimonial.
Through in limine procedure, they should redact or exclude the portions of any statement
that have become testimonial.” Id. (emphasis omitted). In other words, and as applied in
the present matter, the district court was acting appropriately when it initiated a line-by-line
review of the transcript of Gallegos’s 911 call. Davis specifically charged the district court
with this responsibility. The district court erred when it abandoned that task and summarily
concluded that the entire transcript was inadmissible.

{15} Having laid out the governing law, we turn now to an application of those legal
principles to the case before us. To review, Davis makes clear that our primary task is to

5
evaluate Gallegos’s statements in light of the core definitional distinction between
nontestimonial and testimonial statements. The four factors laid out in Davis serve as a
guide in that determination.

911 Operator as a Law Enforcement Officer

{16} Because both parties raise this issue, we briefly discuss whether the 911 operator in
this case was acting as a law enforcement officer. Citing the fact that in Davis the United
States Supreme Court left unresolved “whether and when statements made to someone other
than law enforcement personnel are ‘testimonial,’” id. at 823 n.2, the State argues that
statements made to non-law enforcement personnel (such as emergency medical responders)
are always nontestimonial. Defendant, on the other hand, contends that under Davis, the 911
operator in this case was acting as an agent of law enforcement and the statements are
therefore testimonial. We are unpersuaded that this distinction is pertinent in the context of
this case. Instead, as in Davis, we assume without deciding that the inquiries of the 911
operator amount to “acts of the police.” Id.

Analysis of the Facts in the Present Matter in Light of Davis

{17} Defendant first argues that Gallegos’s statements were testimonial because there was
no ongoing emergency in this case. We disagree. A review of the 911 transcript persuades
us that Gallegos’s statements in that transcript are entirely nontestimonial in nature, as that
term is defined in Davis. Gallegos initiated the 911 call only moments after she was
attacked; she told the 911 operator that Defendant had just attacked her. She informed the
911 operator that she had just fled from him and that Defendant had initially pursued her
while continuing to brandish the instrument with which he had attacked her. She informed
the operator that it appeared Defendant was under the influence of alcohol or drugs.
Gallegos was crying throughout the call, which reflects her frightened and panicked state and
further demonstrates that Gallegos initiated the call at a moment filled with exigency. She
informed the operator that she was, at that very moment, experiencing significant pain and
described the violent episode which was the source of that pain. When she fled her house,
Gallegos left her two small children behind. Contrary to Defendant’s assertion, Gallegos did
not tell the operator that Defendant “would not harm the children.” Rather, she stated that
she was uncertain whether he might harm them. Given the events that had just transpired,
Gallegos was clearly expressing concern for the children’s safety. She provided the 911
operator the identity of her attacker, a description of him, whether he had a proclivity for
violence, whether he was likely to flee the area, and whether he was armed with dangerous
weapons. These facts were essential to assist the police in safely apprehending Defendant,
an immediate and ongoing concern.

{18} These circumstances manifestly indicate that the United States Supreme Court’s
conclusion in Davis is equally applicable in this matter. “[T]he circumstances of [the 911]
interrogation objectively indicate its primary purpose was to enable police assistance to meet
an ongoing emergency.” 547 U.S. at 828. Gallegos “simply was not acting as a witness; she

6
was not testifying. What she said was not a weaker substitute for live testimony at trial. . .
. No witness goes into court to proclaim an emergency and seek help.” Id. (internal
quotation marks and citations omitted). Based on our evaluation of the objective
circumstances surrounding Gallegos’s phone call, and in light of the four factors set forth
in Davis, we are persuaded that any reasonable listener would conclude that Gallegos was
facing an ongoing emergency and was describing events as they unfolded.

Gallegos Was Describing Events as They Were Happening

{19} Applying the first Davis factor, we observe that, although Gallegos told the 911
operator of events that had just occurred, those occurrences served to establish whether
Defendant posed a present danger. The facts here plainly contradict Defendant’s assertion
that Gallegos was reporting past events. Gallegos’s statements that she was experiencing
pain, the cause of that pain, her emotive responses conveying fear, and her uncertainty about
the safety of her children are all statements concerning an immediate and existing state of
events. Gallegos’s description of Defendant, his present whereabouts, his proclivity for
violent behavior including whether he had harmed Gallegos in the past, whether he was
armed, whether he would flee, what he had been doing in the hours preceding the attack, and
her observation that Defendant appeared to be under the influence of drugs and/or alcohol
all served to establish not only whether Defendant posed continuing danger to Gallegos, but
also to provide the police officers dispatched to apprehend Defendant with the information
they needed to ensure their safety while carrying out that task. See id. (stating that
“[o]fficers called to investigate . . . need to know whom they are dealing with in order to
assess the situation, the threat to their own safety, and possible danger to the potential
victim” (alterations in original) (internal quotation marks and citation omitted)). See, e.g.,
Collins v. State, 873 N.E.2d 149, 154-55 (Ind. Ct. App. 2007) (discussing Davis and
observing that information elicited from a 911 caller permitting the swift and safe
apprehension of 911 caller’s assailant constitutes nontestimonial statements); State v.
Bennett, 218 S.W.3d 604, 612-13 (Mo. Ct. App. 2007) (same); Santacruz v. State, 237
S.W.3d 822, 828-30 (Tex. Ct. App. 2007) (same); State v. Williams, 150 P.3d 111, 120
(Wash. Ct. App. 2007) (same).

{20} Defendant seems to argue that under Davis, a 911 caller must be describing a
criminal offense as it is happening, with the perpetrator present, for the caller’s statements
to be nontestimonial. We disagree and note first that Davis does not so hold; rather it
considers this as only one factor to be considered in determining whether statements were
made under circumstances objectively indicating that the primary purpose of the
interrogation was to enable police assistance to meet an ongoing emergency. 547 U.S. at
827. Further, with respect to Gallegos’s description of the attack itself, the fact that Gallegos
initiated the 911 call after the attack—and was thus describing an event that had already
occurred—does not, in and of itself, render those statements a description of past events. In
State v. Camarena, 176 P.3d 380, 387 (Or. 2008) (en banc), the Supreme Court of Oregon
found that a 911 call made moments after a woman was attacked by the defendant (her
boyfriend) had sufficient “temporal proximity” to the attack itself to permit the court to

7
conclude that the call described an immediate event rather than a past incident. We are
equally persuaded that the temporal proximity between the attack and Gallegos’s statements
to the 911 operator describing Defendant and how he attacked her—the record reflects that
Gallegos made the call as soon as she was able—establishes that she was similarly reporting
an occurring event rather than a past incident. To conclude otherwise would ignore, in our
view, what is likely a common feature of 911 calls initiated by victims of violence. The call
almost universally occurs after the violent incident. Accordingly, the circumstances
surrounding the 911 operator’s questioning of Gallegos objectively indicates that the primary
purpose was to assist police in meeting an ongoing emergency.

Gallegos Faced an Ongoing Emergency

{21} As to the second Davis factor, a review of the 911 call shows that any reasonable
listener would recognize that Gallegos was facing an ongoing emergency. She had just fled
her home, partially dressed, after having been violently attacked. Defendant pursued her
with the instrument with which he attacked her. She was forced to seek refuge in the home
of a stranger and was frightened, injured, and in pain.

{22} Defendant contends that Gallegos was not facing an ongoing emergency because
having successfully fled from Defendant, she was not in imminent risk of further injury.
Defendant focuses on Gallegos’s statement to the 911 operator that she was in a neighbor’s
home and did not anticipate any further violence from Defendant. We find Defendant’s
assertions unpersuasive for three reasons. First, Defendant punched Gallegos in the head and
back and swung the pole at her elbow. When she ran out of the house, he was running after
her with the pole indicating that he might follow her. Second, as previously noted, both the
United States and New Mexico Supreme Courts have stressed that we must examine the
statements made during the interrogation from an objective perspective. Davis, 547 U.S. at
822; State v. Ortega, 2008-NMCA-001, ¶ 29, 143 N.M. 261, 175 P.3d 929 (filed 2007), cert.
denied, 2007-NMCERT-012, 143 N.M. 213, 175 P.3d 307 (“At the core of the [Davis]
analysis is the objective purpose of the interrogation.”). As such, we find Defendant’s
emphatic reliance on Gallegos’s statements that she subjectively believed she was no longer
in danger misplaced. Objectively, Gallegos’s statement that she was not at risk of further
harm is nothing more than speculation. There is nothing in the record to refute that Gallegos
had no objective way of knowing whether Defendant was still a threat to her safety, the
safety of her children, the safety of the neighbors who were protecting her, or the safety of
other residents in their community.

{23} Our third reason for rejecting Defendant’s argument that the ongoing emergency had
ended concerns the scope of the definition of ongoing emergency. Defendant’s assertion that
Gallegos’s separation from Defendant neutralized the ongoing emergency is premised on a
constrained definition of that term. According to Defendant, the ongoing emergency ended
when Gallegos’s physical proximity to Defendant prevented him from further injuring her.
This assertion ignores the facts that Gallegos was injured, needed medical attention, was
terrified, and was crying; that a criminal offense had just occurred; and that the perpetrator

8
of that offense remained at large. As demonstrated by the following authorities, we conclude
that Defendant’s narrow definition of the term ongoing emergency is erroneous.

{24} In Smith v. United States, 947 A.2d 1131, 1134 (D.C. 2008), the defendant (the
victim’s estranged husband) objected to the admission of the victims’s 911 call arguing that
under Davis, his departure from the crime scene after he had attacked the victim indicated
that the emergency, and any imminent threat to the victim, had subsided. The District of
Columbia Court of Appeals responded that the defendant’s assertion was premised on an
“unduly restrictive” definition of the term ongoing emergency. Id. The Court explained that
“to make the actual physical presence of the alleged wrongdoer a dominant factor in
determining whether there is an ongoing emergency, narrows and distorts the guiding
principle to be applied to a wide range of circumstances.” Id. In a similar case, but in far
more colorful language, the California Court of Appeals in its analysis of the ongoing
emergency factor of Davis rejected a nearly identical argument. See People v. Brenn, 60
Cal. Rptr. 3d 830, 838 (Ct. App. 2007). The defendant in that case asserted that the
statements recorded in a 911 call initiated by the victim he had stabbed did not occur during
an ongoing emergency because the victim fled the scene of the stabbing and found refuge
in a neighbor’s home where he called 911. Id. The court’s response to this argument is as
well reasoned as it is piquant:

[The defendant] questions whether [the victim] was facing an
emergency at all, given that [the victim] had gone next door to call the police.
This is an argument much easier to make from a law office than from 100
feet from someone who has just stabbed you. At the time of the call, [the
victim] was suffering from a fresh stab wound, [the defendant] was still at
large, and it was unclear whether [the defendant] still had any weapons or
was searching for [the victim]. . . . It is hard to construct a definition of the
word ‘emergency’ that this scenario does not fit.

Id.; accord United States v. Arnold, 486 F.3d 177, 190 (6th Cir. 2007). In light of these
authorities, as well as our review of the circumstances surrounding Gallegos’s 911 call, we
are persuaded that the call was made during an ongoing emergency.

The Statements Elicited From Gallegos by the 911 Operator Were Necessary to Resolve
a Present Emergency

{25} Under the third Davis factor, our review of the questions posed to Gallegos by the
911 operator and the statements those questions elicited, when viewed objectively, reveals
that the questions were clearly directed at resolving the present emergency and not to learn
what had happened in the past. The 911 operator elicited from Gallegos the following
information: what had happened to Gallegos, when the attack had happened, who had
attacked her, whether Gallegos was under any imminent threat, where her attacker might be
located, whether her attacker was intoxicated, whether her attacker was armed, and whether
her attacker had a proclivity for violence and posed a threat to the officers dispatched to

9
apprehend him. These are precisely the types of questions a 911 operator would need
answered in order to orchestrate an adequate and safe response to a present emergency. See
People v. Dominguez, 888 N.E.2d 1205, 1212-13 (Ill. App. Ct. 2008) (discussing the third
factor of Davis and concluding that the 911 operator’s questions—“why [the victim] was
fleeing [the] defendant, what [the victim’s] injuries were, where [the victim] was located,
and where [the victim] left [the] defendant,”—were clearly designed to resolve a present
emergency).

{26} We are not persuaded that the operator’s question regarding whether Defendant had
harmed Gallegos previously, and her response that he had, is “obviously . . . [a statement
regarding] prior bad acts” and constitutes a testimonial statement. To conclude that this
question and Gallegos’s response were directed at unearthing information about Defendant’s
prior conduct for purposes of a subsequent criminal prosecution assumes a great deal. Our
review of the transcript suggests that this question had a number of possible purposes, most
prominently, to calm Gallegos down in a tense and anxiety-filled moment and to ascertain
whether Defendant has a penchant for violence and was likely to pose a threat to the
responding officers. Furthermore, after asking this question and receiving Gallegos’s
response that Defendant had acted violently towards her in the past, the operator asked no
follow-up questions. Such questions would be anticipated if the operator’s initial inquiry
was for purposes of criminal prosecution. Accordingly, as we have previously stated, we see
no reason to exclude the statements derived from Gallegos during this particular exchange
on Confrontation Clause grounds.

Gallegos’s Statements Were Provided Over the Phone in an Environment That Was
Neither Tranquil nor Safe

{27} Finally, under the fourth Davis factor, despite the fact that Gallegos called 911 from
a neighbor’s house and stated that she did not believe she was under any immediate threat
from Defendant, we conclude that the circumstances of Gallegos’s call indicate that she was
neither safe nor in a tranquil environment during that call. She was in a stranger’s home,
facing an uncertain but very real threat, she was injured and frightened, and she was
anxiously awaiting the arrival of the police and medical assistance. Our conclusion that
these circumstances demonstrate that Gallegos was not in a safe or tranquil environment is
supported by the court’s discussion in Davis as to what constitutes a safe and tranquil
environment. As used in Davis, the phrase “safe” and “tranquil” environment do not refer
to the absence of an immediate threat but to an environment akin to formal police
interrogation. See Davis, 547 U.S. at 827.

{28} The court reached the conclusion in Davis that McCottry was not in a safe or tranquil
environment by contrasting her circumstances and the circumstances surrounding the
statements given by Hammon with the statements of the declarant in Crawford, which the
court held were clearly testimonial in nature. The Court observed that “[t]he questioning
that generated the [declarant’s] statement in Crawford . . . was made and recorded while [the
declarant] was in police custody, after having been given Miranda warnings.” Davis, 547

10
U.S. at 822 (discussing Crawford). Based on this distinction, between McCottry’s
statements and those in Crawford, the Court concluded that McCottry’s statements were not
provided in an environment that was safe or tranquil:

[T]he difference in the level of formality between the two interviews is
striking. [The declarant in Crawford] was responding calmly, at the station
house, to a series of questions, with the officer-interrogator taping and
making notes of her answers; McCottry’s frantic answers were provided over
the phone, in an environment that was not tranquil, or even (as far as any
reasonable 911 operator could make out) safe.

Davis, 547 U.S. at 827.

{29} Turning to the Court’s discussion in Davis of the circumstances surrounding the in-
person police questioning of Hammon, the Court observed that Hammon’s “interrogation
was conducted in a separate room, away from her husband (who tried to intervene), with the
officer receiving her replies.” Id. at 830. This type of interrogation, according to the Court,
had a “striking resemblance” to the Crawford interrogation. Davis, 547 U.S. at 830.
Highlighting the similarities between them, the Court noted that “[b]oth declarants were
actively separated from the defendant[s] . . . Both statements deliberately recounted, in
response to police questioning, how potentially criminal past events began and progressed.
And both took place some time after the events described were over.” Id.

{30} In this case, unlike the formal police interviews in Crawford and with Hammon in
Davis, Gallegos’ conversation with the 911 operator was not calm, formal, or controlled but
was more akin to McCottrey’s call in Davis. Indeed, the tape shows Gallegos was crying
and frantically answering the 911 operator’s questions in an environment that was neither
safe nor tranquil. As with the first three Davis factors, we find that the fourth Davis factor
also supports the conclusion that Gallegos’s statements are nontestimonial.

Limitations on Our Holding

{31} We emphasize that our decision that Gallegos’s statements to the 911 operator are
admissible is limited to the facts in this case. District courts should conduct an independent
analysis of 911 calls applying the four Davis factors to the facts before it. We also
emphasize that our opinion addresses only the precise issue of whether the statements are
admissible under the Confrontation Clause. At trial, it is possible that some other issue
regarding the admissibility of those statements could arise.

CONCLUSION

{32} For the foregoing reasons, we conclude that Gallegos’s statements to the 911 operator
were not testimonial and therefore do not violate Defendant’s Sixth Amendment rights under

11
the Confrontation Clause. Accordingly, we reverse the district court’s ruling and remand
for further proceedings in accordance with the foregoing opinion.

{33} IT IS SO ORDERED.

____________________________________
LINDA M. VANZI, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
ROBERT E. ROBLES, Judge

Appendix

Operator: 911 emergency what is the city please?

Woman: I ahh, I need a police officer to come to my house.

Operator: What is your address?

Woman: Um, 320 Lopez in Chamberino

Operator: 320 Lopez?

Woman: Yes sir. (Crying)

Operator: In Chamberino? Okay, what’s going on?

Woman: My boyfriend just hit me across the arm with a, with a with
a pole.

Operator: What’s your name?

Woman: Celina (crying)

Operator: What’s your phone number Celina?

12
Woman: I don’t have, I don’t have a phone, I’m at a neighbor’s house.

Operator: You’re at a neighbor’s house?

Woman: Yes (crying)

Operator: Okay, where is Lopez off of San Luis Avenue on Francisco?

Woman: I’m not sure, we barely moved over here, I just--

Operator: Okay

Woman: I was just, we live in front, in back of the um fire depart, the
fire department in Chamberino

Operator: Okay, I (inaudible) think I got it.

Operator: Okay, what’s your name?

Woman: Celina

Operator: Okay, what’s his name?

Woman: Joseph (crying)

Operator: Do you need an ambulance?

Woman: I . . . I don’t know. I just know my elbow hurts like, like
really really bad.

Operator: Okay. We’ll get you some help over there. Okay, ahh, oh
Jesus. Okay, where is he at?

Woman: He’s at the house with my daughters.

Operator: And you’re at a neighbor’s house?

Woman: Yes.

Operator: Are there any weapons?

Woman: Uhm, no, I don’t think so.

Operator: Okay. And his name is Joseph, you said?

13
Woman: Yes.

Operator: How old is he?

Woman: I’m sorry?

Operator: How old is he?

Woman: He’s 21.

Operator: Okay, and he’s there with the daughter?

Woman: Yeah, he . . . yeah, my two daughters.

Operator: Is anybody else hurt over there?

Woman: No.

Operator: How many kids are there at the house?

Woman: Two

Operator: How old are they?

Woman: Ahh, one’s 4 and one’s 1.

Operator: Okay, uhm, has he been drinking or anything?

Woman: No

Operator: Uhm, is he on any drugs?

Woman: No, I don’t think so. He barely came home last night.

Operator: From where?

Woman: From out with some guys.

Operator: Okay. And you don’t know if there’s any weapons or
anything?

Woman: No.

14
Operator: Okay. I want you to calm down, I want you to stay on the
phone with me. Would he hurt the girls, do you know?
(inaudible)

Woman: I don’t think so.

Operator: Okay. Where else are you hurt at?

Woman: Just my elbow, he just swung the pole at my elbow
(inaudible). He was punching me a couple of times on my
head and my back, that’s it.

Operator: Okay. Hold on, stay on the line. (Inaudible) . . . I’m talking
to her. Okay. Is he in the living room or where?

Woman: I think so.

Operator: Okay. Um, what is he wearing right now?

Woman: A grey shirt with the blue pants.

Operator: Hang on okay. Don’t hang up. Paul? Paul? Ask . . .
(inaudible) It’s aah 320 South Lopez, so I can make a copy.
Hang on okay . . . (inaudible) . . . Did he follow you out there
or anything?

Woman: He was, he was running after me with the pole but I ran over
here.

Operator: Okay. Try to calm down okay. We are going to get you
some help out there. Did it copy to him? No, okay. Okay.
Take a deep breath okay.

Woman: Yes.

Operator: Okay, they’re on their way over there. Okay, what would he
be driving if he decided to leave?

Woman: Uhm, he doesn’t have a car. He would just walk.

Operator: No, negative on all that, negative on all of that now.

Woman: (crying) ouh

15
Operator: What neighbor’s house are you at?

Woman: I’m sorry

Operator: What neighbor’s house are you at? Is it across the street or?

Woman: No, it’s across the way (inaudible), next to the church.
(crying)

Operator: What color, what, do you know the address there?

Woman: What’s your address? 702 Convent.

Operator: Convent?

Woman: Yes Ma’am.

Operator: Okay, let me know if anything changes[.] What’s going on
with your arm, is it swelling, is it uh?

Woman: I’m not sure, I can’t even move it, it hurts, like really bad.

Operator: We’re getting help over there okay?

Woman: Okay

Operator: Are you in a trailer or is it that house?

Woman: No, it’s a house.

Operator: Okay, what kind of pole did he hit you with?

Woman: Um, it’s, it’s a gold metal rod kind of pole for, I’m not sure
for what it’s for.

Operator: And you don’t know, and you don’t know what it is used for?

Woman: No, it’s a, it’s very thick, I don’t know. (crying)

Operator: Ma’am, I am getting you help okay?

Woman: Okay

Operator: What, so you don’t know your neighbor’s phone number?

16
 Woman: Uh, no they have a cell phone, its [sic] one of their
boyfriend’s cell phone.

Operator: Okay, can I have, ask them if I can have that number just in
case we, I lose you, I can call you right back.

Woman: The police said if he can have the number so that if anything
happens he can call back. [Telephone number provided by
the woman omitted.1]

Operator: Okay, try to (inaudible) they are on their way okay. Is he still
in the house?

Woman: I’m not sure.

Operator: And the girls, where are they at? Are they still in the house?

Woman: Their [sic] inside, their [sic] inside the house.

Operator: Can he see you from where you are at?

Woman: Yeah, he can see?

Operator: Okay, and he wouldn’t go over there to the neighbor’s house.

Woman: Nah, he wouldn’t come over here.

Operator: What are you wearing?

Woman: (Inaudible) with baby blue on them with just a tank top, like
a sports bra.

Operator: Has he done this to you before?

Woman: Ah, yeah, we’ve, I’ve called the cops before and oh.

Operator: Okay, (inaudible) they are on their way.

Woman: (moaning)

1
The district court concluded that the telephone number Gallegos provided to the
operator should be omitted from the record for purposes of privacy. As a matter of prudence,
we adopt that conclusion.

17
Operator: And, they said, you said he came home last night from being
with his friends. Can you tell if he was drinking or anything?

Woman: Uh no, I don’t know. It looked like he was, he was on
something though.

Operator: But there’s no guns or anything in the house?

Woman: No, not that I seen

Operator: He doesn’t carry a knife with him or anything?

Woman: No (crying)

Operator: How is your arm doing?

Woman: It like really hurts really bad.

Operator: (Inaudible)

Woman: My elbow.

Operator: (Inaudible)

Woman: Huh.

Operator: Is it swelling up?

Woman: I’m, I’m not sure, I can’t see cause it’s on it’s on my elbow.

Operator: On your elbow. Can you hear them coming towards you?

Woman: Um yeah, I can hear somebody.

Operator: Okay

Woman: But like really far.

Operator: I think they’re by the church. More close by. What color’s
their house?

Woman: I’m sorry

Operator: What color is their house?

18
 Woman: My house is brown. Okay, I see a police going towards my
house.

Operator: Okay, I’m gonna go ahead and let you go so you can go speak
with them okay?

Woman: Okay

Operator: All right, bye bye.

Woman: Bye

Topic Index for State v. Soliz, No. 28,018

AE APPEAL AND ERROR
AE-SR Standard of Review
AE-IA Interlocutory Appeal

CT CONSTITUTIONAL LAW
CT-CT Confrontation

CL CRIMINAL LAW
CL-DO Domestic Violence

CA CRIMINAL PROCEDURE
CA-WT Witnesses

19