                                Cite as 2014 Ark. App. 231

                 ARKANSAS COURT OF APPEALS
                                       DIVISION II
                                      No. CR-13-696


                                                 OPINION DELIVERED APRIL 16, 2014
CLEVELAND LEE WRIGHT
                   APPELLANT                     APPEAL FROM THE PULASKI
                                                 COUNTY CIRCUIT COURT,
                                                 SEVENTH DIVISION
V.                                               [NO. CR-2012-1124]

                                                 HONORABLE BARRY ALAN SIMS,
                                                 JUDGE
STATE OF ARKANSAS
                                 APPELLEE        AFFIRMED



                         ROBERT J. GLADWIN, Chief Judge

       Appellant Cleveland Wright appeals his convictions by a Pulaski County jury of

first-degree domestic battering, fleeing, and possession of cocaine, for which he was

sentenced to a term of 780 months in the Arkansas Department of Correction. On appeal,

he argues that a police officer’s testimony violated the Confrontation Clause of the Sixth

Amendment to the U.S. Constitution. We find merit in appellant’s argument but hold that

the circuit court’s error was harmless and affirm his convictions.

       Appellant was married to Ronique Wright, and they lived in an apartment with their

children in Jacksonville, Arkansas. Early in the morning on February 22, 2012, Ms. Wright,

bleeding from serious knife wounds and “fading in and out,” went to the apartment of her

neighbor, Pamela Livings.      Ms. Livings called 911, and Ms. Wright provided law-

enforcement officers with a description of appellant’s vehicle. Officers subsequently located

and pursued a vehicle matching the description on Pike Avenue in North Little Rock.
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Appellant led the officers through North Little Rock and Sherwood, driving sixty miles-per-

hour on city streets and running through stop signs and red lights. He turned onto Highway

161 and increased his speed to ninety and ninety-five miles-per-hour, at one point passing

a stopped school bus with flashing lights. He finally stopped after pulling into a driveway

along Highway 161.

       Dr. Robert Haley Shaw, a surgeon at Baptist Health Medical Center in North Little

Rock, examined and operated on Ms. Wright.             He determined that she had thirty

lacerations, including a stab wound in her abdomen large enough for her intestine to

protrude through the abdominal wall. She also had wounds on her chest, including one near

the aorta, multiple wounds on her left arm and left hand, as well as a collapsed left lung.

       On April 12, 2013, the State filed an amended, three-count felony information against

appellant in which the State alleged that on or about February 22, 2012, appellant committed

the following criminal offenses: (1) Class B felony first-degree domestic battering; (2) Class

D felony fleeing; and (3) Class D felony possession of cocaine. In the information, the State

requested that any sentence of imprisonment imposed on appellant for having committed

first-degree domestic battering be enhanced pursuant to Arkansas Code Annotated section

5-4-702(a) (Supp. 2011), because he committed the offense in the presence of a child, his and

Ms. Wright’s minor son, R.J. The State also alleged in the information that appellant was

a habitual offender with four or more prior felony convictions, as defined in Arkansas Code

Annotated section 5-4-501(b) (Supp. 2011).

       Appellant’s jury trial was held on April 16–17, 2013. The jury found him guilty of

having committed first-degree domestic battering in the presence of a child, felony fleeing,

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and cocaine possession. The jury sentenced appellant as a habitual offender, and the circuit

court imposed the four consecutive sentences of imprisonment, which resulted in an

aggregate sentence of sixty-five years pursuant to a sentencing order entered on April 22,

2013. Appellant filed a timely notice of appeal on May 16, 2013.

       Appellant argues that the circuit court erred in denying an objection made by his

counsel on the basis of the Confrontation Clause of the Sixth and Fourteenth Amendments

to the United States Constitution. In a criminal prosecution in a state court, the defendant

has a Sixth Amendment right to confront the witnesses against him. Chambers v. State, 2012

Ark. 407, ___ S.W.3d ___. A defendant’s Sixth Amendment right to confront the State’s

witnesses is applicable to the states as a matter of the Fourteenth Amendment because it is

essential to a fair trial. Id. at 2, ___ S.W.3d at ___ (citing Pointer v. Texas, 380 U.S. 400, 403

(1965)). For questions of constitutional interpretation, this court employs a de novo standard

of review. Chambers, supra.

       Appellant argues that the circuit judge erred in denying his Sixth and Fourteenth

Amendments Confrontation Clause-based objection to State’s witness Jacksonville Police

Officer John Alberson’s repeating statements made to him out of court by the victim, Ms.

Wright, which included the statement that she and her husband had argued at their

apartment. His attorney made a timely objection during the direct examination of Officer

Alberson as follows:

       OFFICER ALBERSON : With regard to what I do remember about Ronique Wright,
       what was her condition when I first saw her, she was bleeding from multiple puncture
       wounds. She had[,] I could tell[,] stab wounds in her hands, her mouth, around her
       neck area. She did have a shirt on but it was, I mean, she was just covered in blood.


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She was in and out of a panic state. She was able to tell me what had happened[,] but
I had her sit down.

I grabbed a white plastic lawn chair and actually had her sit down until the ambulance
arrived on scene. And I got as much information from her as I possibly could on the
suspect.

DEPUTY PROSECUTING ATTORNEY : Let’s talk about that for a minute. With regard
to what information did she give you about the suspect?

DEFENSE COUNSEL: May we approach, please?

THE COURT: Yes.

(Counsel approached the bench for a conversation with the circuit judge, out of
hearing of the jury, as follows:)

DEFENSE COUNSEL: Judge, it sounds like they’re going to offer testimony from Ms.
Ronique Wright that was told to this officer. I have two objections on that. One is
hearsay. Also, the other is that it violates the Confrontation Clause of the Sixth
Amendment of the U.S. Constitution, also the Crawford [v. Washington, 541 U.S. 36
(2004)] case that supports it that this is testimony.

These were questions asked by this officer of Ms. Ronique Wright for the purpose
of developing a case and prosecuting this case. And because of that and because I have
no way of cross-examining her since she is not present here today, this violates the
Sixth Amendment’s confrontation clause and it is also rank hearsay.

DEPUTY PROSECUTING ATTORNEY : My first argument, Judge, is that exception to
hearsay under [Arkansas Rule of Evidence] 803, you have present sense impression
and also excited utterance. It would qualify—these statements would qualify under
that.

And secondly, this is based on what she told him about the defendant and the car, the
description of the car. A broadcast is put out. So that’s also basis of action.

DEFENSE COUNSEL: These are all testimonial in nature, Judge. Disallowed without
her being present.

DEPUTY PROSECUTING ATTORNEY: Why they’re looking for the car, I mean,
because she gave them that description.

THE COURT: I will allow it.

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(Then, in open court:)

OFFICER ALBERSON : With regard to what information did she give me about the
person that did this to her, she advised me her and her husband had got into an
argument at their apartment, which was actually across the parking lot, apartment 5B,
I do believe, was their apartment. And that they had a son in the room, that was in
the living room.

DEFENSE COUNSEL: Judge, if we could approach.

(Counsel again approached the bench for a conversation with the circuit judge, out
of hearing of the jury, as follows:)

DEFENSE COUNSEL: Judge, I have a continuing objection. I thought we just
discussed this that he was going to give a description of the car that he obtained from
her. Because we’re not going in to the circumstances of this case. That’s clearly
testimony that he has elicited. This is—the testimony they offer that it violates the
Confrontation Clause, Judge.

DEPUTY PROSECUTING ATTORNEY : Is the Court -- has the Court made a ruling
with respect to the hearsay exception?

THE COURT: Right.

DEPUTY PROSECUTING ATTORNEY : I mean, she has been stabbed and she’s trying
to relay this information to the officer.

DEFENSE COUNSEL: Keep your voice down.

DEPUTY PROSECUTING ATTORNEY : Is it a hearsay -- so can I continue?

THE COURT: I say that’s an exception. You may continue.

DEFENSE COUNSEL: Judge, this is not a hearsay argument.

THE COURT: Okay.

DEFENSE COUNSEL: This is a Sixth Amendment Confrontation Clause argument
under the Crawford case.

THE COURT: That’s denied. That’s denied. Have a seat. Thank you.



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       Appellant claims that Officer Alberson’s on-scene questioning of the victim, Ms.

Wright, was not conducted to address an on-going emergency. There are multiple United

States Supreme Court cases that analyze the Confrontation Clause issue appellant presents to

this court. The most recent is Michigan v. Bryant, 131 S. Ct. 1143 (2011), where the

Supreme Court discussed the relevant line of cases and further analyzed the legal principles

governing “testimonial” hearsay, which the Supreme Court discussed in Crawford, supra, and

later in Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006) (consolidated for

purposes of appeal). In Crawford, the Supreme Court introduced the concept of testimonial

hearsay and held that if the out-of-court declarant is unavailable to testify at trial and if the

defendant has not had a prior opportunity to cross-examine the declarant, the Confrontation

Clause prohibits the introduction at trial of the declarant’s out-of-court statements.

       In Davis and Hammon, the Supreme Court further developed the concept of

testimonial hearsay to “determine more precisely which police interrogations produce

testimony” and therefore implicate a Confrontation Clause bar. Davis and Hammon, 547

U.S. at 822. The Supreme Court made clear that not all those questioned by the police are

witnesses and not all interrogations by law-enforcement officers are subject to the

Confrontation Clause. See Bryant, 131 S. Ct. at 1153. Similar to the instant case, Davis and

Hammon were both domestic-violence cases. In Davis, the victim made the statements at issue

to a 911 operator during a domestic disturbance with her former boyfriend. She told the

operator, “‘He’s here jumpin’ on me again,’” and, “‘He’s usin’ his fists.’” 547 U.S. at 817.

The operator then asked the victim for the perpetrator’s first and last names and middle

initial, and at that point in the conversation the victim reported that he had fled in a car. Id.

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at 818. As in this case, the victim did not appear at the trial, and the State introduced the

recording of her conversation with the 911 operator. Id.

       In Hammon, police responded to a domestic-disturbance call at the home of the victim

and perpetrator, who were married, where the victim was found alone on the front porch.

She appeared “‘somewhat frightened,’” but told them “‘nothing was the matter.’” Bryant,

131 S. Ct. at 1154 (quoting Hammon v. State, 829 N.E.2d 444, 446–47 (Ind. 2005)). The

victim gave the police permission to enter the house, where they noticed a gas heater with

the glass front shattered on the floor. One officer remained in the kitchen with the

perpetrator, while another officer talked to the victim in the living room about what had

happened. Id. The perpetrator tried several times to participate in the victim’s conversation

with officers, and he became angry when the police required him to stay away from her. Id.

Officers asked the victim to fill out and sign a battery affidavit, in which she provided a

detailed description of the altercation. Id. The victim did not appear at the trial, and the

officers who spoke with her testified as to her statements and authenticated the affidavit. Id.

The circuit court admitted the affidavit as a present-sense impression and admitted the oral

statements as excited utterances under state hearsay rules. Id. The Indiana Supreme Court

affirmed Hammon’s conviction, holding that the victim’s oral statements were not

testimonial and that the admission of the affidavit, although erroneous because the affidavit

was testimonial, was harmless. See Hammon v. State, 829 N.E.2d at 458–59.

       The Supreme Court consolidated the cases, expanded the meaning of “testimonial”

first analyzed in Crawford, and discussed the concept of an ongoing emergency:



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       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.

Bryant, 131 S. Ct. at 1154 (quoting Davis, 547 U.S. at 822). The Supreme Court went on

to hold that the statements at issue in Davis were non-testimonial, but the statements in

Hammon were testimonial. Id. The Supreme Court distinguished the statements in Davis

from the testimonial statements in Crawford on several grounds, including that (1) the victim

in Davis was speaking about events as they were actually happening, rather than describing

past events; (2) there was an ongoing emergency that the elicited statements were necessary

to resolve; and (3) the statements were not formal. Davis, 547 U.S. at 827.

       In Hammon, however, the Supreme Court specifically held that “[i]t is entirely clear

from the circumstances that the interrogation was part of an investigation into possibly

criminal past conduct.” Id. at 829. There was not an emergency in progress, and the officer

questioning the victim was not seeking to determine what was currently happening, but

rather what had already occurred. See id. at 830. The Supreme Court held that it was more

formal because officers interrogated the victim in a room separate from her husband, the

perpetrator, where, “some time after the events described were over,” she “deliberately

recounted, in response to police questioning, how potentially criminal past events began and

progressed.” Id. The Supreme Court held that because the victim’s statements “were

neither a cry for help nor the provision of information enabling officers immediately to end

a threatening situation,” id. at 832, they were testimonial.


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       In the case before us, appellant’s counsel made a Crawford-based objection to Officer

Alberson’s repeating in-court statements made to him out of court by Ms. Wright, who was

appellant’s spouse. The record before us indicates that Ms. Wright was not available to testify

at appellant’s trial, and appellant had not had a previous opportunity to cross-examine her.

       Appellant asserts that the facts of the Supreme Court’s most recent case analyzing

testimonial hearsay in the context of a police officer’s on-the-scene questioning of a victim

of a crime, Bryant, supra, has facts similar to this case. In Bryant, a police officer, responding

to a radio dispatch, found a man lying on a gas station parking lot, having been shot in the

abdomen. The victim subsequently died of his wounds; however, before he was removed

from the crime scene, officers were able to speak with him for about ten minutes. Id.

During that discussion, the victim was able to tell officers that Richard Bryant had shot him,

where the shooting had occurred, and at what time. Id. At Mr. Bryant’s trial, officers were

allowed to repeat in court what the victim had told them about the incident.

       In Bryant, a majority of the Supreme Court held that the officers’ repetition in court

of the victim’s out-of-court statements were not testimonial hearsay and were not, therefore,

prohibited from introduction into evidence by the Sixth and Fourteenth Amendments’

Confrontation Clause. Much of the opinion is an overview of the prior decisions in

Crawford, Davis, and Hammon regarding testimonial hearsay in a similar situation. The

Supreme Court reiterates that its position on the testimonial-hearsay issue is that the

appropriate analysis is intensely fact-driven and must be decided on a case-by-case basis.

       The Supreme Court in Bryant held that answers that police officers get from a victim

of a crime at the scene are not testimonial hearsay if they are later repeated in court by the

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officers when the primary purpose of the police officers’ on-the-scene questioning of the

victim is to enable the police to meet an ongoing emergency. The Supreme Court noted

specifically that the circumstances of the encounter between officers and the victim provide

the context for determining why officers questioned the victim, and that the circumstances

are to be viewed objectively. Bryant, 131 S. Ct. at 1156. The Supreme Court held that “the

statements and actions of both the declarant and interrogators provide objective evidence of

the primary purpose of the interrogation.” Id. at 1160. The Supreme Court noted the

informality of the police questioning of Mr. Bryant, but concluded that “informality does not

necessarily indicate the presence of an emergency or the lack of testimonial intent.” Id.

Moreover, the Supreme Court explicitly stated,

       The existence of an emergency or the parties’ perception that an emergency is
       ongoing is among the most important circumstances that courts must take into
       account in determining whether an interrogation is testimonial because statements
       made to assist the police in addressing an ongoing emergency lack the testimonial
       purpose that would subject them to the requirement of confrontation. As the context
       of this case brings into sharp relief, the existence and duration in an emergency
       depend on the type and scope of danger posed to the victim, the police, and the
       public.

Id. at 1162. The Bryant Court then summarized the nature of the situation the police faced

in that particular case as follows,

              For their part, the police responded to a call that a man had been shot. [T]hey
       did not know why, where, or when the shooting had occurred. Nor did they know
       the location of the shooter or anything else about the circumstances in which the
       crime occurred. The questions they asked—“what had happened, who shot him, and
       where the shooting occurred”—were the exact type of questions necessary to allow
       the police to assess the situation, the threat to their own safety and possible danger to
       the potential victim, and to the public.

Id. at 1165–66 (internal citations omitted).


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       A close examination of the questioning by Officer Alberson of Ms. Wright, as well

as her answers, demonstrate that Officer Alberson was not, objectively, facing an ongoing

emergency that posed a danger either to the public at large, or specifically to Ms. Wright or

himself.   Officer Alberson testified that he questioned Ms. Wright to get “as much

information from her as I [possibly] could on the suspect.” She told Officer Alberson that

she and her husband “had got into an argument.” It is important to note that the Supreme

Court in Bryant stated, “Domestic violence cases like Davis and Hammon often have a

narrower zone of potential victims than cases involving threats to public safety.” Bryant, 131

S. Ct. at 1158.       Officer Alberson testified that he had been dispatched to a

“stabbing”—information that informed Officer Alberson, before he encountered Ms. Wright,

that she was not the victim of a shooting rampage. In Bryant, the Supreme Court indicated

that the presence of a firearm, as opposed to another sort of weapon, such as the fists of a

domestic abuser, contributed to an objective sense that no ongoing emergency was present.

Id. at 1158–59, 1163–64. Additionally, Officer Alberson also testified that Ms. Wright had

told him that appellant “had left the area.” This information would support Officer

Alberson’s objectively reasonable belief that he did not face an ongoing emergency while

questioning Ms. Wright.

       We hold that this situation was more akin to Hammon, in that none of the information

gathered by Officer Alberson in questioning Ms. Wright would have led an objectively

reasonable person to conclude that he was confronting an ongoing emergency during his

encounter with Ms. Wright.



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       The nature of the crime committed against Ms. Wright was undisputedly one of

domestic violence. The offense was not committed by a stranger, but rather by her husband,

appellant. It is also undisputed that by the time Officer Alberson questioned Ms. Wright,

appellant had fled the scene. The information Officer Alberson obtained would have

suggested to an objectively reasonable person that appellant did not pose an ongoing threat

to the public, to Ms. Wright, or to the police. Because Ms. Wright’s out-of-court statements

to Officer Alberson were not made in the context of an ongoing emergency, we hold that

they were testimonial hearsay when repeated in court by Officer Alberson and the circuit

court erred in denying appellant’s Crawford-based Confrontation Clause objection to the

admissibility of Ms. Wright’s out-of-court statements.

       That said, we affirm appellant’s convictions, holding that the error by the circuit court

was harmless beyond a reasonable doubt, and appellant can show no prejudice. The

information conveyed by Officer Alberson was not challenged by appellant and was also

presented through other witness testimony independent of Officer Alberson’s testimony.

       Beyond the mere assertion of the right to confront witnesses, appellant must also

demonstrate prejudice by the denial of examination of the witness or that such a request

would have availed him anything. See Miller v. State, 2010 Ark. 1, 362 S.W.3d 264. A

Confrontation Clause violation is subject to harmless-error analysis, meaning harmless beyond

a reasonable doubt. Hughes v. State, 2012 Ark. App. 586, at 5–6. This court has held that

whether the denial of the right to confront a witness is harmless beyond a reasonable doubt

depends on numerous factors, including (1) the importance of the witness’s testimony in the

State’s case; (2) whether the testimony was cumulative; (3) the presence or absence of

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evidence corroborating or contradicting the testimony of the witness on material points; (4)

the extent of cross-examination otherwise permitted; and (5) the overall strength of the

State’s case. Id.

       Ms. Wright did not appear or testify at appellant’s trial; however, R.J., the son of

appellant and Ms. Wright, who was seven years old at the time of trial, testified that he was

in the living room when he saw appellant stab Ms. Wright with a knife in the kitchen.

During his direct examination, the prosecutor asked Officer Alberson what information Ms.

Wright gave him about the person who had stabbed her. Officer Alberson testified as

follows:

       She advised me her and her husband had got into an argument at their apartment,
       which was actually across the parking lot, apartment 5B, I do believe, was their
       apartment. And that they had a son in the room, that was in the living room.

On appeal, appellant challenges only Officer Alberson’s testimony that Ms. Wright and

appellant had had an argument in their apartment while their son was in the living room.

       Appellant has never disputed the facts related by Officer Alberson, that he and Ms.

Wright had argued in the presence of their son. It should be noted that Officer Alberson’s

account of what Ms. Wright told him did not include any assertion by her that appellant had

stabbed her. Rather, it was their son, R.J.,who testified independently of Officer Alberson’s

testimony that he saw appellant stab Ms. Wright. Later in appellant’s trial, Sergeant Robert

Washington of the Jacksonville Police Department testified that he observed appellant at the

jail and heard appellant tell other arrestees that he was there because he had stabbed his wife

after she had first stabbed him. He explained that appellant also told the other arrestees that

he had led the police on a high-speed chase and had swallowed a large amount of cocaine.

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       In reviewing the factors listed above for determining whether the denial of the right

to confront a witness is harmless beyond a reasonable doubt, we hold that Officer Alberson’s

testimony—that a marital argument took place in front of appellant and Ms. Wright’s son—

was not required to prove the State’s case. That testimony was cumulative to both R.J.’s

graphic testimony that he saw appellant stab Ms. Wright and Sergeant Washington’s

testimony that he heard appellant tell others that he had stabbed his wife. The admission of

Officer Alberson’s testimony was harmless beyond a reasonable doubt because it did not put

the jury in possession of any fact that was not otherwise admitted without objection.

Because appellant has failed to show how Officer Alberson’s testimony could possibly have

contributed to the jury’s verdict, he has failed to show any prejudice, and any error was

harmless beyond a reasonable doubt.

       Affirmed.

       WOOD and BROWN , JJ., agree.

       Kent C. Krause, Deputy Public Defender, by: Clint Miller, Deputy Public Defender,

for appellant.

       Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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