A domestic assault complainant’s after-the-fact description of the assault to police is not directed at responding to an ongoing emergency—and is therefore testimonial—when the sole suspect has left the premises and there is no evidence of injury, weapons, or immediate danger

Danny Andrade v.United States, No. 13-CM-224 (decided January 8, 2015)

Players:  Associate Judges Washington, Blackburne-Rigsby, and McLeese.  Opinion by Judge McLeese.  Thomas D. Engle for Mr. Andrade.  Trial Judge:  Fern Flanagan Saddler.

Facts:  This was a simple assault case arising from a confrontation between Mr. Andrade and his girlfriend, Shawnice Reed.  Ms. Reed called 911 and reported that Mr. Andrade had “put[] his hands” on her, but also said that he had left the premises.  Police arrived at her home less than five minutes after receiving the 911 dispatch.  Mr. Andrade was not present and police perceived no immediate danger.  An officer interviewed Ms. Reed to obtain information necessary to confirm Mr. Andrade’s involvement and locate him.  During this interview, Ms. Reed was crying and upset, and claimed that Mr. Andrade had grabbed her, hit her, and put both his hands on the front of her neck.  Officers could not find Mr. Andrade when they looked for him.  They arrested him later that night outside Ms. Reed’s home after receiving a call about an unwelcome guest. 

Ms. Reed did not testify at trial.  Her statements to police were deemed non-testimonial and admitted solely on the ground that they were directed at responding to an emergency.

Issue:  Did Ms. Reed’s statements to police during the interview at her home qualify as non-testimonial statements directed at responding to an ongoing emergency?

Holding:  No.  The government failed to carry its “burden of establishing that the primary purpose of the questioning . . . was to enable the police to meet an ongoing emergency,” where the evidence showed only that the complainant “had just reported a domestic-violence incident, that she was very upset, that the alleged perpetrator was no longer on the scene but had not yet been located, and that the questioning was relatively informal.”  Thus, the statements were testimonial and their introduction violated the Sixth Amendment.  The error was not harmless because the statement was the crux of the government case. 

Of Note:

• Among the factors the Court considers in its totality of the circumstances analysis are the lack of evidence of injuries or any weapon, the open-ended nature of the officer’s questioning, and the fact that everyone understood that Mr. Andrade had left the premises at the time of the questioning.

• The Court pointedly distinguishes the circumstances in this case from those in the recent decision of Frye v. United States, 86 A.3d 568 (D.C. 2014), observing that in Frye, “this court emphasized a number of circumstances that are not present in this case:  the officers arrived in the middle of a heated argument; there were a number of children present who needed to be protected; the woman appeared to need medical assistance; and the officers were still trying to clarify and control a fluid, confused, and volatile situation.”  MW 

Read full opinion here.