Is the emergency ongoing? Two judges say "yes" and one says "no," where the police interrupt a domestic dispute, separate the parties, and ask the complainant "what happened?"

Gary Frye v. United States, No. 12-CM-1438 (decided March 13, 2014)

The Players: Judges Thompson, Easterly, and Farrell.  Opinion by Judge Farrell.  Dissent by  Judge Easterly.  Andrew Murnane for Appellant. Trial Judge: Judge Nash.

The Facts:  Responding to a 911 call, police arrived at a home on Texas Ave., S.E. to find Jewel Parker and Gary Frye arguing at the top of a stair case.   Officers immediately separated the two and placed them in different bedrooms.  When police asked Parker “what [had] happened,” she stated that the two were arguing over Frye’s use of PCP, that she locked herself in a room where she “felt safe,” and that Frye then kicked the door in, grabbed her, shoved her into the floor, and tried to choke her. According to the police, Parker was extremely upset during the interview, was “shaking . . . and . . . crying,” and seemed to need medical attention.

Frye was tried in a bench trial before the Honorable Stuart Nash. Parker did not testify at trial.  Over defense objection, the government introduced the statement Parker made to the police.  At the close of trial, Judge Nash found Frye guilty of simple assault.

Issue: Did the admission of Parker’s statement violate Frye’s Sixth Amendment right to confrontation?

Holding: No. 

The Court held that Parker’s statements were nontestimonial because they were made to help the police meet an “on-going emergency” and not with the primary purpose of producing evidence to be used against Frye at trial.  The Court noted that when officers arrived on the scene, they did not know what happened, saw two individuals fighting, and faced a “fluid and somewhat confused” situation about which they knew almost nothing.  When the officers asked Parker “what happened,” they were concerned with securing the “volatile” situation, not with obtaining evidence.  And when Parker answered them, she was “appeal[ing] for safety,” not trying to “establish facts for an eventual prosecution.”

The Court acknowledged that police had separated Parker and Frye when they questioned her,  a fact significant to the Supreme Court in Hammon v. Indiana.  See Davis v. Washington, 547 U.S. 813 (2006).  But unlike in Hammon, where the police encountered no apparent emergency when they arrived on the scene and where the declarant told police that everything was fine, police discovered Parker and Frye arguing.  Parker remained upset during the interview and was visibly shaking and crying.  This made it highly unlikely that she was trying to give a statement for use in a criminal prosecution.  Further, the Court did not believe that the emergency was over.    Officers still needed to discern whether the children in the house were at risk or in need of social services, and whether Parker needed medical attention. 

Ms. Parker’s “excited” demeanor also supported the Court’s conclusion that the statement was nontestimonial.  Parker’s “acute emotional distress, which made her answers undisputed ‘excited utterances,’ . . . implied that her attention was focused more on ‘ending a threatening situation’ than on ‘proving past events.’”

The Dissent: The dissent criticized the majority’s conclusion that there was an “on-going emergency.”  Parker and Frye were in separate rooms when police questioned her.  The “on-going emergency” exception therefore did not apply.   The dissent also did not believe that the record supported the majority’s conclusion that Parker was “plead[ing] for safety for herself and her children” when she spoke to the police.  “[N]othing in the record indicates that when she spoke to the police she wanted to do anything other than report criminal activity.”  The dissent accused the majority of engaging in impermissible speculation. 

Of Note:  Counsel should argue that even after Frye, the “on-going emergency” exception is a narrow one.  Frye involved a unique group of facts: when police arrived on the scene, they did not know what had happened, and they immediately observed an ongoing argument.  Even when they separated Frye from Parker, the emergency was not obviously over.  Parker had injuries that could require medical attention, and Parker’s children were still running throughout the house.  The situation had not been defused.  Counsel should try to distinguish Frye on this basis.  Further, the police in Frye asked only one question.  Additional police questioning could undermine the inference that they are merely responding to an ongoing emergency.

Read the full opinion here.