The Court in Andrade v. U.S., (No. 13-CM-224), an opinion issued on January 8, 2015, reversed the assault conviction based on erroneous admission of testimonial evidence by the trial court. Specifically, appellant Andrade argued his 6th Amendment right to confront the complaining witness was violating in allowing the witness-complainant’s statement to the police office to be admitted as substantive evidence.
The relevant facts are as follows: Ms. Reed (the complainant) had called 911 indicating that her boyfriend Danny Andrade had gotten into an argument with her and that Mr. Andrade “been putting his hands on [Ms. Reed].” Ms. Reed, who sounded excited and upset on the 911 recording, asked the dispatcher to send the police, saying that she had locked herself in the bathroom but that Mr. Andrade was about to come into the bathroom. As the 911 call continued, Ms. Reed said that Mr. Andrade left the house, got on a bike, and went down the street. Ms. Reed then said that the police had arrived and that she was going to go speak to them.
The police officer at the scene began questioning the complainant to ascertain what had occurred, and the complainant at that point still upset and crying, provided specifics of the incident: Ms. Reed and Mr. Andrade got into an argument, and Mr. Andrade tried to push her down the steps. After Ms. Reed started to go down the steps, Mr. Andrade came after her, grabbed her by the hair, and hit her several times in the back of the head and the neck. Ms. Reed broke free, but Mr. Andrade grabbed her, putting both of his hands on the front of her neck. Finally, Ms. Reed broke free again, ran into the bathroom, locked herself in, and called 911.
The Court on this appeal was charged with determining whether the statements to the police officer was testimonial in nature and thus inadmissible or non-testimonial and spontaneous arouse and motivated by existence of an emergency or exigency and thus admissible.
The law on the subject is well established: the Confrontation Clause of the Sixth Amendment forbids admission of out-of-court “testimonial” statements made by a non-testifying witness-declarant. If the primary purpose of the questioning is to address an ongoing emergency, then, the statement would be admissible — if the questioning deemed to be routine and investigatory, then statements would deemed to be testimonial and thus in violation of the 6th Amendment.
The Court in its analysis considered posture and disposition of both the police officer and the complaining witness. It was clear to the police officer that no emergency existed. The assailant had already left the scene when the officers had arrived and assault was not ongoing. Although the complainant was still upset and shaking, there were no visible injuries or need for medical attention. No weapons were used or involved.
The Court distinguished the facts and circumstances of this case as opposed to cases where the officer had responded to a domestic violence assault in progress, there were children involved and in need of protection, the women was injured and in need of medical attention and in totality the police was trying to “clarify and control a fluid, confused, and volatile situation.”
Thus the Court in reversing the conviction held that the government “did not carry its burden of establishing that the primary purpose of the questioning in this case was to enable the police to meet an ongoing emergency. At bottom, the United States established only that Ms. Reed 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.”
The Court’s ruling would have been different if there was enough evidence on the 911 tape to establish elements of the assault. The tape was deemed admissible under the excited utterance exception. However, the statements by the complainant, which did established the elements of assault were determined to be testimonial in nature and thus non-admissible necessitating reversal.