              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-1070

                                 Filed: 17 May 2016

New Hanover County, No. 14 CRS 52620

STATE OF NORTH CAROLINA

             v.

CHRISTOPHER ALLEN MCKIVER


      Appeal by Defendant from judgment entered 29 April 2015 by Judge Benjamin

G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 11

February 2016.


      Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E.
      Herrin, for the State.

      Kimberly P. Hoppin for Defendant.


      STEPHENS, Judge.


      Defendant Christopher Allen McKiver appeals from the judgment entered

upon his conviction for one count of possessing a firearm as a convicted felon following

a jury trial in New Hanover County Superior Court. McKiver argues that the trial

court committed reversible error, in violation of his rights under the Sixth

Amendment to the United States Constitution to confront the witnesses against him,

when it denied his motion in limine to exclude evidence of an anonymous 911 call and

the subsequent 911 dispatcher’s call back. McKiver also contends that the trial court
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erred in denying his motion to dismiss. We hold that although the trial court did not

err in denying his motion to dismiss, McKiver is entitled to a new trial because the

erroneous admission of testimonial statements violated his Sixth Amendment rights

and was not harmless.

                                 Factual Background

      At 9:37 p.m. on 12 April 2014, Wilmington Police Department (“WPD”) Officer

Scott Bramley was dispatched to Penn Street in the Long Leaf Park subdivision in

response to an anonymous 911 caller’s report that there was a possible dispute and a

black man with a gun standing outside. Bramley activated his patrol car’s blue lights

and siren on his way to the scene, stopped a few blocks away to retrieve his patrol

rifle from the vehicle’s trunk, then proceeded to Penn Street and parked on the left

side of the roadway. As he exited his vehicle, Bramley noticed two individuals

standing near a black Mercedes that was parked beside a vacant lot. The Mercedes

was still running, and Bramley could hear music “blaring” from its radio as he

approached the two individuals, one of whom was a black male wearing a red and

white plaid shirt, jeans, and a hat, who began to walk toward Bramley. Although

Bramley had not yet received any description of the suspect, he “confronted [the man

in the plaid shirt] about possibly having [a firearm], at which point he lifted his shirt

to show [Bramley] he did not have a gun.” After performing a pat-down to confirm

that the man was unarmed, Bramley let him go and continued his investigation.



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      By this time, several other WPD officers had arrived on the scene, which

Bramley would later describe as “very dark” due to the “very sporadic” street lighting

in the area. Bramley observed there were a number of other individuals watching

from nearby residences and walking around near the vacant lot, perhaps 100 yards

away from the Mercedes. After a few moments, Bramley asked the New Hanover

County 911 dispatcher for a better description of the suspect, was informed that the

anonymous 911 caller had already disconnected, and requested the dispatcher to

initiate a call back. After reconnecting with the anonymous 911 caller, the dispatcher

reported to Bramley that “[s]he said it was in a field in a black car,” and that

“[s]omeone said he might have thrown the gun.” Several WPD officers searched for

the gun in the vacant lot and eventually discovered a Sig Sauer P320 .45 caliber

handgun located approximately 10 feet away from the Mercedes. Meanwhile, after

Bramley told the dispatcher he had located a black Mercedes and asked whether the

caller had provided a description of the suspect, the dispatcher replied, “Black male,

light plaid shirt. He was last seen by the car with a gun in his hand and the [caller]

went inside.” Bramley later testified that upon receiving this information, he

“immediately knew [the suspect] was the first gentleman that I had come into contact

with because no one else in that area was wearing anything remotely similar to that

clothing description.” Bramley returned to his patrol car to see if he could pull a

photograph off his vehicle’s dashboard camera of the man he had patted down upon



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first arriving in order to relay it to officers en route to the scene, but was unable to do

so. Shortly thereafter, McKiver approached the WPD officers who were searching the

Mercedes and asked what they were doing to his car. Upon seeing the red plaid shirt

McKiver was wearing, Bramley recognized him as the same black male he had patted

down upon his arrival, concluded he met the description provided in the call back to

the anonymous 911 caller, and placed McKiver under arrest.

      WPD officers subsequently determined that the Mercedes was registered to

McKiver’s brother in Elizabethtown and found a red bag in the vehicle’s trunk

containing cash and medications prescribed to McKiver. Although they found no

fingerprints or DNA evidence on the firearm they found in the vacant lot, the officers

traced its serial number to one that had been reported stolen from an individual in

Elizabethtown.

                                   Procedural History

      On 22 September 2014, McKiver was indicted by a New Hanover County grand

jury on one count of possession of a firearm by a felon and one count of possession of

a stolen firearm. These matters came on for a jury trial in New Hanover County

Superior Court on 27 April 2015, the Honorable Benjamin G. Alford, Judge presiding.

      Prior to jury selection, the trial court held a hearing on McKiver’s motion in

limine to exclude evidence of the anonymous 911 call and the dispatcher’s call back.

After noting the lack of any fingerprints or DNA found on the firearm and the lack of



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any eyewitness testimony that he had ever possessed it, McKiver contended that both

calls amounted to testimonial hearsay and that their admission in evidence would

violate his Sixth Amendment right to confront the witnesses against him. In

response, the State argued that the calls were nontestimonial, and therefore properly

admissible, because the statements they contained were made to enable police

assistance to meet an ongoing emergency. The trial court denied McKiver’s motion

but granted his request for a continuing objection to the admission of this evidence in

order to preserve the issue for appellate review.

      At trial, the State presented testimony from Bramley about the investigation

he conducted in response to the initial 911 call and, over McKiver’s timely objection,

how he relied on the description provided during the dispatcher’s call back of the

suspect’s shirt to identify and arrest McKiver. In addition to Bramley’s testimony,

the State introduced evidence of McKiver’s prior felony conviction for possession with

intent to sell or distribute marijuana; played a recording of the initial 911 call for the

jury and admitted the 911 call logs into evidence; and also presented testimony from

New Hanover County 911 communications manager Deborah Cottle, who explained

how the 911 dispatch system works. WPD crime scene technician Max Cowart also

testified and explained the procedures he followed for photographing and collecting

evidence from the crime scene, and Elizabethtown resident Hunter Norris testified




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that the firearm recovered from the scene had belonged to his father before it was

stolen.

      At the close of the State’s evidence, McKiver moved to dismiss both charges for

insufficient evidence but the trial court denied this motion. McKiver declined to put

on any evidence and renewed his motion to dismiss, which the court again denied

before providing jury instructions on both actual and constructive possession. The

case was submitted to the jury on 29 April 2015. That same day, the jurors returned

verdicts convicting McKiver on the charge of possessing a firearm as a convicted felon

but acquitting him on the charge of possessing a stolen firearm. The court sentenced

McKiver to 14 to 26 months imprisonment, suspended for 36 months of supervised

probation after completion of a six-month active term. After sentencing, McKiver

gave notice of appeal to this Court.

                                       Analysis

                                  Motion to dismiss

      We first address McKiver’s argument that the trial court erred in denying his

motion to dismiss the charge of possession of a firearm by a convicted felon.

Specifically, McKiver argues that the court should have dismissed the charges

against him because there was insufficient evidence of additional incriminating

circumstances to support a jury verdict that he constructively possessed the firearm.

We disagree.



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      As this Court’s prior decisions make clear, “[w]hen ruling on a defendant’s

motion to dismiss, the trial court must determine whether there is substantial

evidence (1) of each essential element of the offense charged, and (2) that the

defendant is the perpetrator of the offense.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007) (citations omitted). “Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

State v. Cummings, 46 N.C. App. 680, 683, 265 S.E.2d 923, 925 (citations omitted),

affirmed, 301 N.C. 374, 271 S.E.2d 277 (1980). “[A]ll evidence admitted, whether

competent or incompetent, must be considered in the light most favorable to the

State, giving the State the benefit of every reasonable inference to be drawn from the

evidence and resolving in its favor any contradictions in the evidence.” State v.

Worsley, 336 N.C. 268, 274, 443 S.E.2d 68, 70-71 (1994) (citation omitted). Thus, a

defendant’s motion to dismiss “is properly denied if the evidence, when viewed in the

above light, is such that a rational trier of fact could find beyond a reasonable doubt

the existence of each element of the crime charged.” Id. at 274, 443 S.E.2d at 71

(citation omitted). This Court reviews the trial court’s denial of a motion to dismiss

de novo. Smith, 186 N.C. App. at 62, 650 S.E.2d at 33.

      Section 14-415.1 of our General Statutes provides that “[i]t shall be unlawful

for any person who has been convicted of a felony to purchase, own, possess, or have

in his custody, care, or control any firearm[.]” N.C. Gen. Stat. § 14-415.1(a) (2015).



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“[T]he State need only prove two elements to establish the crime of possession of a

firearm by a felon: (1) [the] defendant was previously convicted of a felony; and (2)

thereafter possessed a firearm.” State v. Perry, 222 N.C. App. 813, 818, 731 S.E.2d

714, 718 (2012) (citation omitted), disc. review denied, 366 N.C. 431, 736 S.E.2d 188

(2013). Possession of the firearm “may be actual or constructive. Actual possession

requires that a party have physical or personal custody of the [firearm]. A person has

constructive possession of [a firearm] when the [firearm] is not in his physical

custody, but he nonetheless has the power and intent to control its disposition.” State

v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted),

superseded in part on other grounds by statute as stated in State v. Gaither, 161 N.C.

App. 96, 587 S.E.2d 505 (2003), disc. review denied, 358 N.C. 157, 593 S.E.2d 83

(2004). However, where a defendant does not have “exclusive control of the location

where the [firearm] is found, constructive possession of the [firearm] may not be

inferred without other incriminating circumstances.” State v. Clark, 159 N.C. App.

520, 525, 583 S.E.2d 680, 683 (2003) (citation and internal quotation marks omitted).

      In the present case, the evidence introduced at trial tended to show that

McKiver had previously been convicted of a felony; that an anonymous 911 caller saw

a man wearing a plaid shirt and holding a gun near a black car beside a field; that

someone saw that man drop the gun; that upon his arrival at the scene, Bramley saw

McKiver standing near a black Mercedes wearing a plaid shirt; that Bramley saw



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multiple individuals watching from nearby residences and walking near the vacant

lot; that McKiver later returned to the scene and said the car was his; that although

the car was registered to McKiver’s brother in Elizabethtown, WPD officers found

medication prescribed to McKiver himself in the trunk; and that the WPD officers

found a firearm that had been reported stolen from Elizabethtown in the vacant lot

approximately 10 feet away from the Mercedes.

      McKiver contends that because the firearm was found not in his possession but

instead in a vacant lot that he did not maintain control over, the State failed to

introduce sufficient evidence of incriminating circumstances from which it could be

inferred that he constructively possessed the gun. However, this argument ignores

the fact that the State also presented evidence that when Bramley arrived, McKiver

was standing near the black Mercedes wearing a shirt similar to the one the

anonymous caller described the man with the gun wearing before someone saw him

drop it. Although McKiver takes issue with the admissibility of the initial 911 call

and subsequent dispatcher’s call back, our standard of review requires consideration

of “all of the evidence actually admitted, whether competent or incompetent.” State

v. Jones, 208 N.C. App. 734, 737, 703 S.E.2d 772, 775 (2010) (holding that even though

evidence was erroneously admitted in violation of the defendant’s rights under the

Confrontation Clause, it nevertheless “provid[ed] substantial evidence, for the

purpose of [the] defendant’s motion” to dismiss), vacated on other grounds, 365 N.C.



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467, 722 S.E.2d 509 (2012); see also State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12,

23 (1996) (“[T]he fact that some of the evidence was erroneously admitted by the trial

court is not a sufficient basis for granting a motion to dismiss.”); State v. Littlejohn,

264 N.C. 571, 574, 142 S.E.2d 132, 134 (1965) (“Though the court below, in denying

[the defendants’] motion for nonsuit, acted upon evidence which we now hold to be

incompetent, yet if this evidence had not been admitted, the State might have

followed a different course and produced competent evidence tending to establish

[each element of the offense].”). Thus, even assuming arguendo that the trial court

erred in admitting this evidence, it remains relevant to our analysis for purposes of

this issue.1 Because this evidence was sufficient to support a reasonable juror in

concluding that additional incriminating circumstances existed—beyond McKiver’s

mere presence at the scene and proximity to where the firearm was found—and, thus,

to infer that McKiver constructively possessed the firearm, we conclude the trial court

did not err in denying McKiver’s motion to dismiss.

                                      Confrontation Clause

       McKiver argues that the trial court erred in denying his motion to exclude

evidence of the anonymous 911 call and the dispatcher’s call back because admission




1 Given our conclusion infra that McKiver is entitled to a new trial due to the violation of his Sixth
Amendment rights, we note here that this evidence would clearly be inadmissible against McKiver at
any subsequent trial, and thus would not be proper for the trial court to consider should the same
inquiry arise again.

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of the testimonial hearsay they contained violated his rights under the Sixth

Amendment’s Confrontation Clause. We agree.

      “The standard of review for alleged violations of constitutional rights is de

novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation

omitted), appeal dismissed, 363 N.C. 857, 694 S.E.2d 766 (2010). Once error is shown,

the State bears the burden of proving the error was harmless beyond a reasonable

doubt. See N.C. Gen. Stat. § 15A-1443(b) (2015).

      The Sixth Amendment to the United States Constitution provides in pertinent

part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him[.]” U.S. Const. amend. VI. In Crawford v.

Washington, the United States Supreme Court held that the Confrontation Clause

forbids “admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a prior opportunity

for cross-examination.” 541 U.S. 36, 53-54, 158 L. Ed. 2d 177, 194 (2004). Although it

did not provide a specific definition in Crawford of what makes a statement

“testimonial,” the Court offered clarification on this issue in its opinion consolidating

two cases, Davis v. Washington and Hammon v. Indiana. See Davis v. Washington,

547 U.S. 813, 822, 165 L. Ed. 2d 224, 237 (2006).

      The statements at issue in Davis were made by the victim to a 911 operator as

the defendant, her ex-boyfriend, attacked her and then fled the scene as soon as she



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identified him by name to the 911 operator. Id. at 818, 165 L. Ed. 2d at 234. Although

the victim did not testify at trial, the recording of the 911 call was admitted into

evidence, and the defendant was convicted of violating a domestic no-contact order.

See id. at 819, 165 L. Ed. 2d at 235. The statements at issue in Hammon were made

after police responded to a reported domestic disturbance at a residence to find the

victim “alone on the front porch, appearing somewhat frightened.” Id. (internal

quotation marks omitted). When asked, however, the victim told the officers “nothing

was the matter,” and granted them permission to enter the home, wherein they found

the defendant, her husband, in the kitchen. See id. While one officer remained with

him, another questioned the victim in another room, where she gave a verbal

description of what had happened and completed a form battery affidavit. See id. at

820, 165 L. Ed. 2d at 235. Although the victim did not testify at trial, the defendant

was convicted after the trial court admitted her affidavit into evidence and also

allowed the officer who interviewed her to testify about what she told him. Id. at 820-

21, 165 L. Ed. 2d at 236.

      As the Court explained in Davis,

             [s]tatements 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


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             prosecution.

Id. at 822, 165 L. Ed. 2d at 237. The Court identified several factors relevant to the

determination of whether a statement is testimonial, including: (1) whether the

victim “was speaking about events as they were actually happening, rather than

describing past events”; (2) whether a “reasonable listener” would recognize that the

victim “was facing an ongoing emergency” and her “call was plainly a call for help

against a bona fide physical threat”; (3) whether the questions asked and statements

elicited by law enforcement “were necessary to be able to resolve the present

emergency, rather than simply to learn . . . what had happened in the past”; and (4)

the contextual formality (or lack thereof) in which the victim’s statements were made.

Id. at 827, 165 L. Ed. 2d at 240 (citations and internal quotation marks omitted;

emphasis in original).

      Based on this analytic framework, the Court held that the victim’s statements

to the 911 dispatcher in Davis were nontestimonial, and properly admissible, because

they described events as they were happening, were made in the face of an ongoing

emergency in a frantic environment that was neither tranquil nor safe, and provided

information necessary to resolve the present emergency. Id. at 828-29, 165 L. Ed. 2d

at 240-41. In so holding, the Court nevertheless cautioned that what begins as a

conversation to elicit information needed to render emergency assistance could

become testimonial and therefore inadmissible. See id. at 828, 165 L. Ed. 2d at 241



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(“This is not to say that a conversation which begins as an interrogation to determine

the need for emergency assistance cannot, . . . , evolve into testimonial

statements, . . . , once that purpose has been achieved.”) (citations and internal

quotation marks omitted). Such was the case in Hammon, the Court concluded,

reasoning that the victim’s statements were testimonial, and therefore inadmissible,

because they were made “some time after the events described were over” and thus

were part of an investigation into past conduct and were not necessary for police to

resolve any ongoing emergency. Id. at 830, 165 L. Ed. 2d at 242. As the Court

explained in a footnote:

             Police investigations themselves are, of course, in no way
             impugned by our characterization of their fruits as
             testimonial. Investigations of past crimes prevent future
             harms and lead to necessary arrests. While prosecutors
             may hope that inculpatory “nontestimonial” evidence is
             gathered, this is essentially beyond police control. Their
             saying that an emergency exists cannot make it be so. The
             Confrontation Clause in no way governs police conduct,
             because it is the trial use of, not the investigatory collection
             of, ex parte testimonial statements which offends that
             provision. But neither can police conduct govern the
             Confrontation Clause; testimonial statements are what
             they are.

Id. at 832 n.6, 165 L. Ed. 2d at 243 n.6 (emphasis in original).

      The North Carolina Supreme Court first applied the approach established in

Davis in State v. Lewis, 361 N.C. 541, 648 S.E.2d 824 (2007). There, a police officer

responded to the victim’s call concerning a robbery at her apartment and took her



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statement, which included a description of the perpetrator, who the victim alleged

had also assaulted her during the robbery, which had occurred several hours earlier.

Id. at 543-44, 648 S.E.2d at 826. The victim was taken to the hospital to treat her

injuries and later that evening, she selected the defendant’s photograph from a

photographic line-up that another officer had assembled based in part on her

statement. See id. The victim died prior to trial, but the trial court allowed both

officers to testify about what the victim told them, and the defendant was convicted

of assault with a deadly weapon inflicting serious injury, robbery with a dangerous

weapon, and misdemeanor breaking and entering. See id.

      On appeal, the defendant argued that the officers’ testimony violated her rights

under the Confrontation Clause. After applying the framework outlined in Davis, our

Supreme Court determined that at the time of her first statement, the victim “faced

no immediate threat to her person”; that the officer “was seeking to determine what

happened rather than what is happening”; that “the interrogation bore the requisite

degree of formality”; that the victim’s statement “deliberately recounted, in response

to police questioning, how potentially criminal past events began and progressed”;

and that the interrogation occurred “some time after the events described were over.”

Id. at 548, 648 S.E.2d at 829 (internal quotation marks omitted). The Court also

observed that “[a]lthough [the] defendant’s location was unknown at the time of the

interrogation, Davis clearly indicates that this fact does not in and of itself create an



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ongoing emergency.” Id. at 549, 648 S.E.2d at 829 (citation omitted). Consequently,

the Court held that the statements were testimonial, and thus inadmissible under

the Confrontation Clause, because the circumstances surrounding them objectively

indicated that no ongoing emergency existed and that “the primary purpose of the

interrogation was to establish or prove past events potentially relevant to a later

criminal prosecution.” Id. The Court ultimately concluded the defendant was entitled

to a new trial because “we cannot say beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained” and also because “we cannot

say beyond a reasonable doubt that the total evidence against [the] defendant was so

overwhelming that the error was harmless[,]” given that the identification of the

defendant as the perpetrator of the crimes alleged depended almost entirely on the

victim’s statements. Id. at 549, 648 S.E.2d at 830 (citations and internal quotation

marks omitted).

      In the present case, the record before us does not include any recording or

transcript of the initial anonymous 911 call or the dispatcher’s call back. However,

McKiver’s counsel cross-examined Bramley extensively about these calls, and we find

particularly relevant the following excerpt from the trial transcript in which Bramley

testified about the statements made in the initial 911 call, as well as the actions he

took in response to it and his observations upon arriving at the scene:

             Q.    . . . When you arrived on the scene, there was just
                   the [Mercedes] and two guys up by the car; is that


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     right?

A.   Yes, sir, off to the left.

Q.   Now, the original caller from 911 informed the
     dispatch and you that there was a black guy outside
     with a gun. Is that your understanding?

A.   Yes, sir. We were informed that there was an
     individual with a firearm and a possible dispute.

Q.   Possible dispute.

A.   Yes, sir.

Q.   You were also told [by the dispatcher] that the caller
     didn’t know if the person was pointing [the gun] at
     anybody.

A.   We weren’t advised whether or not they were
     pointing it, sir, we just know that they—there was
     someone with a firearm on-scene, as well as a
     possible dispute outside. I don’t recall hearing
     whether or not they were pointing it.

Q.   Well, you listened to the 911 call, correct?

A.   I have listened to it as of today, yes, sir.

Q.   In fact, you’re the way that the State introduced that
     into this trial; isn’t that correct?

A.   Yes, sir.

Q.   Okay. Do you recall then that dispatch asked, “Okay.
     Is he pointing it at anyone?”

A.   That’s correct.

Q.   And the response was, “I don’t know.”


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A.   That’s correct.

Q.   “I got away from the window.” Then there’s a
     question. Do you recall this? “Did you happen to see
     what he’s wearing?” Do you recall that question?

A.   Yes, sir.

Q.   And her answer was, “No, I don’t know what he’s
     wearing.” Do you recall that?

A.   I do.

Q.   And in addition to describ[ing] the scene, this caller
     describing the scene, “Do you hear anything right
     now? No, I just know they’re out there.” Do you recall
     that?

A.   Yes, sir.

Q.   “Okay,” dispatcher says, “How many people were out
     there?” And do you recall that she answered, “It was
     people. I mean, it was just people outside. But he’s—
     he’s—I don’t know what he’s doing” ?

A.   Yes, sir.

Q.   “Okay, I mean, was he, like, around people or
     anything? He’s walking around.” Do you recall that?

A.   Yes, sir.

Q.   “Did you know what kind of gun? I don’t know, I just
     saw a gun in his hand. It’s dark outside.” You didn’t
     hear anything about waving the gun or brandishing
     the gun, it was “I just saw a gun in his hand.” Isn’t
     that correct as being your recollection?

A.   That’s correct.


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Q.   And she agreed with you, as you have described it
     yourself, that it was dark outside.

A.   That’s correct.

Q.   Further question that was played here in the court
     in the trial from dispatch, “Do you hear anything
     else going on? Do you hear any arguments outside or
     anything?” “Uh-uh” was her answer. Do you recall
     that?

A.   That’s correct.

Q.   And she concludes, pretty close to the conclusion [of
     the call], the dispatcher asks, “Do you want me to
     stay on the line ‘til they get there?” talking about the
     police units. And the caller’s response was, “No, I’ll
     be fine.”

A.   That’s correct.

Q.   And when you arrived, those events appeared to
     have already happened, is that correct?

A.   Yes, sir.

Q.   Because there was no black man with a gun
     standing there in the street.

A.   That’s correct.

Q.   There was—there were no people standing in a
     crowd around listening to music at that point; is that
     correct?

A.   That’s correct.

Q.   It appeared that what [the caller] was describing
     had already happened; is that correct?


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             A.     Yes, sir.

             Q.     She did not describe anything more about the person
                    she was observing, the clothing.

             A.     At that time, you’re correct. Yes, sir.

             Q.     When you arrived, it would appear that everything
                    was pretty quiet, pretty calm; is that correct?

             A.     Yes, sir.

      Our review of the record demonstrates that the circumstances surrounding

both the initial 911 call and the dispatcher’s subsequent call back objectively indicate

that no ongoing emergency existed. Indeed, even before Bramley and other WPD

officers arrived on the scene, the anonymous caller’s statements during her initial

911 call—that she did not know whether the man with the gun was pointing his

weapon at or even arguing with anyone; that she was inside and had moved away

from the window to a position of relative safety; and that she did not feel the need to

remain on the line with authorities until help could arrive—make clear that she was

not facing any bona fide physical threat. Moreover, Bramley’s testimony on cross-

examination demonstrates that when he arrived at Penn Street, the scene was “pretty

quiet” and “pretty calm.” Although it was dark, Bramley and the other WPD officers

had several moments to survey their surroundings, during which time Bramley

encountered McKiver and determined that he was unarmed. While the identity and

location of the man with the gun were not yet known to the officers when Bramley


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                                   STATE V. MCKIVER

                                   Opinion of the Court



requested the dispatcher to initiate a call back, our Supreme Court has made clear

that “this fact alone does not in and of itself create an ongoing emergency,” Lewis,

361 N.C. at 549, 648 S.E.2d at 829 (citation omitted), and there is no other evidence

in the record of circumstances suggesting that an ongoing emergency existed at that

time. We therefore conclude the statements made during the initial 911 call were

testimonial in nature.

      We reach the same conclusion regarding the statements elicited by the

dispatcher’s call back concerning what kind of shirt the caller saw the man with the

gun wearing and the fact that someone saw the man drop the gun. Because these

statements described past events rather than what was happening at the time and

were not made under circumstances objectively indicating an ongoing emergency, we

conclude that they were testimonial and therefore inadmissible. In our view, this case

presents the same scenario the Davis Court cautioned against, insofar as what began

“as an interrogation to determine the need for emergency assistance . . . evolve[d] into

testimonial statements, . . . , once that purpose ha[d] been achieved.” 547 U.S. at 828,

165 L. Ed. 2d at 241. We emphasize that our conclusion here should by no means be

read as a condemnation of Bramley or the other WPD officers, who reacted

professionally and selflessly to a potentially dangerous situation. Nevertheless, as

Justice Scalia explained in Davis, the harm the Confrontation Clause aims to prevent

is the use of testimonial hearsay at trial, rather than its collection by law enforcement,



                                          - 21 -
                                   STATE V. MCKIVER

                                   Opinion of the Court



and our inquiry on this issue is an objective one, rather than a determination from

an officer’s perspective. See id. at 832 n.6, 165 L. Ed. 2d at 243 n.6 (“While prosecutors

may hope that inculpatory “nontestimonial” evidence is gathered, this is essentially

beyond police control. Their saying that an emergency exists cannot make it be so.”).

Consequently, we hold that the trial court erred by denying McKiver’s motion in

limine to exclude the testimonial statements from the initial 911 call and the

dispatcher’s subsequent call back.

      The State contends this error was harmless but provides no specific arguments

or citations to authority to support such a conclusion. At trial, the identification of

McKiver as the man who held and then dropped the gun depended almost entirely on

the testimonial statements elicited during the initial 911 call and the dispatcher’s

call back, and we cannot say beyond a reasonable doubt that the erroneous admission

of this evidence did not contribute to the jury’s verdict convicting McKiver of

possessing a firearm as a convicted felon, or that the remaining evidence against

McKiver, considered collectively, was “so overwhelming that the error was harmless.”

See Lewis, 361 N.C. at 549, 648 S.E.2d at 830 (citation omitted). Accordingly, we hold

that McKiver is entitled to a

      NEW TRIAL.

      Judges HUNTER, JR., and INMAN concur.




                                          - 22 -
