               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 217PA17

                                 Filed 8 June 2018

STATE OF NORTH CAROLINA

              v.
MARVIN EVERETTE MILLER, JR.



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 696 (2017), vacating judgments

entered on 8 April 2016 by Judge Edwin G. Wilson, Jr., in Superior Court, Guilford

County, and remanding for further proceedings. On 17 August 2017, the Supreme

Court allowed defendant’s conditional petition for discretionary review as to

additional issues. Heard in the Supreme Court on 13 March 2018.


      Joshua H. Stein, Attorney General, by David J. Adinolfi II, Special Deputy
      Attorney General, for the State-appellant/appellee.

      Mark Montgomery for defendant-appellee/appellant.


      ERVIN, Justice.


      The issue before this Court in this case is whether the Court of Appeals erred

by vacating the judgments entered by the trial court based upon defendant, Marvin

Everette Miller, Jr.’s convictions for first-degree murder and attempted first-degree

murder on the grounds that certain evidence had been admitted in violation of

defendant’s constitutional right to confront the State’s witnesses against him. After
                                   STATE V. MILLER

                                   Opinion of the Court



careful consideration of the record in light of the applicable law, we reverse the

decision of the Court of Appeals and remand this case to the Court of Appeals for

consideration of defendant’s remaining challenges to the trial court’s judgments.

      On 31 August 2013, Lakeshia Wells and her boyfriend, Marcus Robinson,

celebrated Ms. Wells’s birthday with family and friends at the Shriners nightclub in

Greensboro. At some point after 2:00 a.m. on 1 September 2013, Ms. Wells and Mr.

Robinson returned to Ms. Wells’s apartment on Bulla Street. After the couple entered

Ms. Wells’s bedroom and had sexual intercourse, Ms. Wells told Mr. Robinson that

she had heard something and asked Mr. Robinson to investigate the source of the

noise. Upon determining that nothing was amiss on the lower floor of the apartment,

Mr. Robinson returned to the upper floor, where he saw an individual, whom he later

identified as defendant, standing in the hallway holding a knife.1

      After being seen by Mr. Robinson, defendant, who was Ms. Wells’s estranged

husband, entered Ms. Wells’s bedroom, where an altercation occurred.            As Mr.

Robinson ran back downstairs in order to retrieve his cell phone and car keys, he was

followed by defendant,2 who cut Mr. Robinson’s face before Mr. Robinson escaped




      1 Investigating officers found blood and other items containing defendant’s DNA in
Ms. Wells’s apartment during the course of the ensuing investigation.

      2 Although defendant admitted that he had entered Ms. Wells’s apartment and that
he had stabbed Mr. Robinson, he claimed to have believed that Ms. Wells would be out of
town, expressed surprise that Mr. Robinson was present in Ms. Wells’s apartment, stated
that he was enraged that both Ms. Wells and Mr. Robinson were naked, and asserted that
Ms. Wells was “fine when [he] left.”

                                           -2-
                                   STATE V. MILLER

                                  Opinion of the Court



through the back door while wearing only a tank top. Once he managed to get outside

of Ms. Wells’s apartment, Mr. Robinson called the police. Following the arrival of

investigating officers, Mr. Robinson was transported to the hospital, where he was

treated for his injuries.

       Detective Benjamin Mitchell of the Greensboro Police Department responded

to a call regarding a stabbing at a Bulla Street address at 3:28 a.m. on 1 September

2013. Upon encountering Mr. Robinson, Officer Mitchell learned that someone had

broken into Ms. Wells’s apartment, that the intruder had begun stabbing the

occupants, and that investigating officers needed to check on Ms. Wells, who was

apparently still inside the apartment. As he entered the apartment, Officer Mitchell

did not observe any signs of a forcible intrusion; however, he did determine that “some

type of disturbance had occurred in the kitchen.” For that reason, Officer Mitchell

and other investigating officers began to search the apartment for both intruders and

Ms. Wells. Upon making his way to the second floor, Officer Mitchell discovered the

dead body of Ms. Wells at the top of the stairs.

       On 10 December 2012, approximately nine months before Ms. Wells was killed,

Officer E.R. Kato of the Greensboro Police Department responded to a call at Ms.

Wells’s Bulla Street apartment relating to a domestic dispute. According to Officer

Kato, Ms. Wells stated that she had been held in her apartment against her will for

a period of two hours by her estranged husband. Although Officer Kato did not recall

having observed any signs that Ms. Wells had sustained a physical injury, he noticed


                                          -3-
                                   STATE V. MILLER

                                  Opinion of the Court



a tear and stress marks in the cotton shirt that Ms. Wells was wearing. At that point,

Officer Kato accompanied Ms. Wells to her apartment and checked the premises to

make sure that defendant had not remained at that location.             Subsequently,

defendant was charged with and convicted of domestic criminal trespass.

      On 4 November 2013, the Guilford County grand jury returned bills of

indictment charging defendant with first-degree burglary, attempted first-degree

murder, and first-degree murder. The charges against defendant came on for trial

before the trial court and a jury at the 4 April 2016 criminal session of the Superior

Court, Guilford County. On 8 April 2016, the jury returned verdicts acquitting

defendant of first-degree burglary and first-degree murder on the basis of malice,

premeditation, and deliberation and convicting defendant of attempted first-degree

murder and first-degree murder on the basis of the felony murder rule using either

first-degree burglary, attempted murder, or assault with a deadly weapon inflicting

serious injury as the predicate felony. Based upon the jury’s verdicts, the trial court

arrested judgment in the case in which defendant had been convicted of attempted

first-degree murder and entered a judgment sentencing defendant to a term of life

imprisonment without the possibility of parole based upon defendant’s first-degree

murder conviction. Defendant noted an appeal to the Court of Appeals from the trial

court’s judgments.

      In seeking relief from the trial court’s judgments before the Court of Appeals,

defendant argued that the trial court had erred by overruling his confrontation-based


                                          -4-
                                    STATE V. MILLER

                                   Opinion of the Court



objection to the introduction of Officer Kato’s testimony concerning the statements

that Ms. Wells made to him on 10 December 2012. According to defendant, the

statements that Ms. Wells had made to Officer Kato were testimonial in nature given

the absence of any ongoing emergency at the time those statements were made, citing

State v. Bodden, 190 N.C. App. 505, 514, 661 S.E.2d 23, 28 (2008) (explaining that

“[s]tatements are testimonial when circumstances objectively indicate there is no

ongoing emergency and the primary purpose of the interrogation is to establish or

prove past events that will be relevant later in a criminal prosecution”), appeal

dismissed and disc. rev. denied, 363 N.C. 131, 675 S.E.2d 660, cert. denied, 558 U.S.

865, 130 S. Ct. 175, 175 L. Ed. 2d 111 (2009). In addition, defendant argued that the

forfeiture doctrine did not extinguish defendant’s confrontation rights given the

absence of any evidence tending to show that defendant had killed Ms. Wells for the

purpose of preventing her from testifying about the domestic criminal trespass case

that resulted from the 10 December 2012 incident, citing Giles v. California, 554 U.S.

353, 361, 128 S. Ct. 2678, 2684, 171 L. Ed. 2d 488, 497 (2008) (explaining “that

unconfronted testimony would not be admitted without a showing that the defendant

intended to prevent a witness from testifying”). Finally, defendant asserted that the

trial court had erred by failing to make findings of fact or conclusions of law in support




                                           -5-
                                      STATE V. MILLER

                                      Opinion of the Court



of its decision to overrule his objection to the challenged portion of Officer Kato’s

testimony, (citing State v. Silva, 304 N.C. 122, 136, 282 S.E.2d 449, 457-58 (1981)).3

       The State, on the other hand, argued that Officer Kato’s testimony concerning

the statements that Ms. Wells made at the time of the 10 December 2012 incident

stemmed from an informal conversation that occurred during an ongoing emergency

arising from a domestic dispute between defendant and Ms. Wells, citing Davis v.

Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006)

(explaining that “[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” and

“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”). According

to the State, the nontestimonial nature of the challenged statements was established

by Officer Kato’s observations concerning the damage to Ms. Wells’s clothing and

Officer Kato’s decision to “clear” Ms. Wells’s apartment.            In the State’s view, a




       3 In addition, defendant argued before the Court of Appeals that (1) the trial court had
erred or committed plain error by instructing the jury that it should only consider the issue
of his guilt of voluntary manslaughter in the event that it found defendant not guilty of either
first-degree or second-degree murder and (2) that the trial court had erred by denying
defendant’s request for the delivery of an instruction defining the concept of a killing in the
heat of passion in a situation involving spousal infidelity. As a result of its acceptance of
defendant’s confrontation-based claim, the Court of Appeals did not reach either of these
instructional issues.

                                              -6-
                                   STATE V. MILLER

                                   Opinion of the Court



reviewing court must consider the degree of “informality of the situation and the

interrogation” in deciding whether to treat challenged extra-judicial statements as

either testimonial or nontestimonial, quoting Michigan v. Bryant, 562 U.S. 344, 377,

131 S. Ct. 1143, 1166, 179 L. Ed. 2d 93, 109 (2011), with the statements at issue in

this case being informal rather than formal. Moreover, even if the statements that

Ms. Wells made to Officer Kato were testimonial rather than nontestimonial in

nature, defendant had previously had an opportunity to cross-examine Ms. Wells

concerning those statements when the 10 December 2012 domestic criminal trespass

charge came on for trial, citing Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct.

1354, 1374, 158 L. Ed. 2d 177, 203 (2004) (explaining that, “[w]here testimonial

evidence is at issue,” “the Sixth Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination”). Finally, the State

contends that defendant had forfeited his right to confront Ms. Wells by wrongfully

killing her, citing United States v. Jackson, 706 F.3d 264, 269 (4th Cir.) (explaining

that “defendants might be tempted to murder, injure, or intimidate witnesses before

trial and then invoke their constitutional right to confrontation to ensure that those

witnesses’ statements are never heard in court”), cert. denied, 569 U.S. 1024, 133 S.

Ct. 2782, 186 L. Ed. 2d 229 (2013), with “[d]efendant’s clear intent to prevent Ms.

Wells from testifying at any subsequent case [being inferable] from defendant’s action

of fatally stabbing her in the heart.”




                                           -7-
                                   STATE V. MILLER

                                   Opinion of the Court



      After noting that defendant had properly preserved this issue purposes of

appellate review, State. Miller, ___ N.C. App. ___, ___, 801 S.E.2d 696, 698 (2017), the

Court of Appeals pointed out that “[t]he Confrontation Clause of the Sixth

Amendment bars admission of testimonial statements of a witness who did not

appear at trial, unless the witness was unavailable to testify and the defendant had

a prior opportunity to cross-examine the witness,” id. at __, 801 S.E.2d at 698 (citing

Bodden, 190 N.C. App. at 513, 661 S.E.2d at 28). According to the Court of Appeals,

the statements that Ms. Wells made to Officer Kato on 10 December 2012 were

testimonial in nature because “there was no immediate threat or ongoing emergency

when the officer spoke to [Ms.] Wells” given that Ms. Wells had reached a safe location

by the time that she called for assistance. Id. at __, 801 S.E.2d at 698 (citing State v.

Lewis, 361 N.C. 541, 547, 648 S.E.2d 824, 828-29 (2007)). In addition, the Court of

Appeals concluded that the questions that Officer Kato posed to Ms. Wells “were

focused on ‘what happened’ rather than ‘what is happening.’ ” Id. at __, 801 S.E.2d

at 698 (quoting Lewis, 361 N.C. at 547, 648 S.E.2d at 829). The Court of Appeals

rejected the State’s contention that defendant had “had an opportunity to cross-

examine [Ms.] Wells on these issues at an earlier trial for criminal domestic trespass,”

reasoning that it had no way to know if Ms. Wells “actually gave this testimony at

the earlier trial because the record does not contain any transcripts or evidence from

that proceeding,” id. at ___, 801 S.E.2d at 699, and held that defendant had not

forfeited his right to confront Ms. Wells despite having killed her on the theory that


                                           -8-
                                   STATE V. MILLER

                                   Opinion of the Court



“forfeiture [by wrongdoing] applies ‘only when the defendant engaged in conduct

designed to prevent the witness from testifying,’ ” with the record being devoid of any

indication that defendant killed Ms. Wells for that purpose. Id. at __, 801 S.E.2d at

699 (quoting Giles, 554 U.S. at 359, 128 S. Ct. at 2683, 171 L. Ed. 2d at 496-98).

Finally, the Court of Appeals held that the State’s failure to argue that the admission

of the challenged statements constituted harmless error precluded it from

determining that the admission of Officer Kato’s testimony concerning Ms. Wells’s

statements was non-prejudicial. Nonetheless, the Court of Appeals observed that, in

light of the presence of overwhelming evidence of defendant’s guilt, the disputed

testimony “almost certainly played little if any role in the jury’s decision to convict.”

Id. at ___, 801 S.E.2d at 700 (first citing N.C.G.S. § 15A-1443(b) (2017); then citing

State v. Bell, 359 N.C. 1, 36, 603 S.E.2d 93, 116 (2004), cert. denied, 544 U.S. 1052,

125 S. Ct. 2299, 161 L. Ed. 2d 1094 (2005)). As a result, the Court of Appeals vacated

the trial court’s judgments and remanded this case to the Superior Court, Guilford

County for further proceedings. Id. at ___, 801 S.E.2d at 700. We granted requests

by both the State and defendant for discretionary review.

      In seeking to persuade us to overturn the Court of Appeals’ decision with

respect to the admissibility of the challenged portion of Officer Kato’s testimony, the

State argues that the Court of Appeals erred by overlooking evidence that Ms. Wells’s

statements were made during an “ongoing emergency” that rendered those

statements nontestimonial in nature. According to the State, a reviewing court must


                                           -9-
                                   STATE V. MILLER

                                  Opinion of the Court



ascertain whether challenged evidence is testimonial or nontestimonial by

determining “the primary purpose of the interrogation,” quoting Bryant, 562 U.S. at

359, 131 S. Ct. at 1156, 179 L. Ed. 2d at 107, with the “primary purpose” inquiry to

be focused upon (1) whether the witness “was speaking about events as they were

actually happening, rather than describ[ing] past events”; (2) whether a reasonable

person, similarly situated to the witness, would have believed that the declarant was

“facing an ongoing emergency”; (3) whether “the nature of what was asked and

answered” “was such that the elicited statements were necessary to be able to resolve

the present emergency, rather than simply to learn . . . what had happened in the

past”; and (4) the level of formality at which the questioning was conducted, quoting

Davis, 547 U.S. at 827, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240 (internal quotation

marks omitted). In the State’s view, a reasonable person would conclude that Officer

Kato’s questions to Ms. Wells were intended to ascertain defendant’s current location

and whether defendant posed a continuing threat to Ms. Wells on the theory that

Officer Kato questioned Ms. Wells in an informal manner in the street adjacent to

her apartment and then in her apartment, rather than in a police station, citing, inter

alia, Bell, 359 N.C. 1, 603 S.E.2d 93. According to the State, at the time that Ms.

Wells made the challenged statements to Officer Kato, neither participant in the

conversation knew defendant’s location; the danger that Ms. Wells faced had not

obviously abated; and Ms. Wells was engaged in “the provision of information

enabling officers immediately to end a threatening situation,” quoting Lewis, 361


                                         -10-
                                  STATE V. MILLER

                                  Opinion of the Court



N.C. at 548, 648 S.E.2d at 829. Next, the State contends that the Court of Appeals’

requirement that defendant have actually cross-examined Ms. Wells as a

precondition for the admission of the challenged statements reflects an overly

restrictive understanding of the relevant confrontation-related jurisprudence, with

an opportunity to cross-examine the absent witness being all that is required by the

relevant decisions of the United States Supreme Court and this Court, first citing

Bell, 359 N.C. at 34-35, 603 S.E.2d at 116 (providing that “the Confrontation Clause

bars out-of-court testimony by a witness unless the witness was unavailable and the

defendant had a prior opportunity to cross-examine him, regardless of whether the

trial court deems the statements reliable”); then citing Crawford, 541 U.S. at 68, 124

S. Ct. at 1374, 158 L. Ed. 2d at 203 (providing, as we have already noted, that,

“[w]here testimonial evidence is at issue,” “the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity for cross-examination”).

As a result of the fact that Ms. Wells was present at defendant’s domestic criminal

trespass trial and was listed as a witness on defendant’s arrest warrant, defendant

had an opportunity to cross-examine Ms. Wells. Finally, the State contends that

nothing in North Carolina law requires the State to make specific reference to

“harmless error” in its appellate brief in order to obtain a finding of harmlessness,

citing N.C.G.S. § 15A-1443(b) (2017) (providing that “[t]he burden is upon the State

to demonstrate, beyond a reasonable doubt, that the error was harmless”). In view

of the fact that “the presence of overwhelming evidence of guilt may render error of


                                         -11-
                                  STATE V. MILLER

                                 Opinion of the Court



constitutional dimension harmless beyond a reasonable doubt,” quoting State v.

Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988) (citing State v. Brown, 306 N.C.

151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S. Ct. 503, 74 L. Ed. 2d 642

(1982)), and the fact that the Court of Appeals acknowledged that the record

contained overwhelming evidence of defendant’s guilt, citing Miller, ___ N.C. App. at

___, 801 S.E.2d at 700, the Court of Appeals erred by failing to find that any error

that the trial court might have committed by admitting the challenged portion of

Officer Kato’s testimony was non-prejudicial.

      On the other hand, defendant argues that the Court of Appeals correctly found

that the admission of Officer Kato’s testimony concerning the statements that Ms.

Wells made at the time of the 10 December 2012 domestic disturbance violated his

confrontation rights. According to defendant, there was no ongoing emergency at the

time that Ms. Wells made the challenged statements to Officer Kato.            More

specifically, defendant contends that, even though a statement that defendant was in

Ms. Wells’s apartment without permission would involve an ongoing event, her

assertion that defendant had assaulted her and held her in her apartment

involuntarily referred exclusively to past events that had no bearing upon Officer

Kato’s subsequent actions. In addition, defendant contends that the Court of Appeals

correctly determined that defendant had not had an opportunity to cross-examine Ms.

Wells at defendant’s domestic criminal trespass trial given the absence of any

evidence that defendant had actually questioned Ms. Wells on that occasion. Finally,


                                        -12-
                                    STATE V. MILLER

                                    Opinion of the Court



defendant argues that appellate courts regularly default defendants for failing to

properly argue prejudice or plain error and that the State should be held to the same

standard. Even if the Court elects to reach the harmless error issue, defendant

contends that the evidence of his guilt of first-degree murder, as compared to

voluntary manslaughter, was not overwhelming. As a result, defendant argues that

the erroneous admission of Officer Kato’s testimony concerning Ms. Wells’s

extrajudicial statements at the time of the 10 December 2012 domestic disturbance

cannot be deemed harmless beyond a reasonable doubt.

      Pursuant to the Sixth Amendment to the United States Constitution and

Article I, Section 23 of the Constitution of North Carolina, “a criminal defendant has

the right to confront witnesses against him.” State v. Ray, 336 N.C. 463, 468, 444

S.E.2d 918, 922 (1994).      “The Confrontation Clause prohibits the ‘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.’ ” State v. McKiver, 369 N.C. 652, 655, 799 S.E.2d 851, 854 (2017)

(quoting Crawford, 541 U.S. at 53-54, 124 S. Ct. at 1365, 158 L. Ed. 2d at 194 (2004)).

“The Confrontation Clause does not, however, apply to nontestimonial statements.”

Id. at 655, 799 S.E. at 854 (citing Whorton v. Bockting, 549 U.S. 406, 420, 127 S. Ct.

1173, 1183, 167 L. Ed. 2d 1, 13 (2007)). As a result of the fact that “ ‘[t]estimony’ . . .

is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing

or proving some fact,’ ” Crawford, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at


                                           -13-
                                     STATE V. MILLER

                                    Opinion of the Court



192 (third alteration in original) (quoting 2 N. Webster, An American Dictionary of

the English Language (1828)), “ ‘testimonial’ statements” typically include “ex parte

in-court testimony or its functional equivalent . . . such as affidavits, custodial

examinations, prior testimony that the defendant was unable to cross-examine, or

similar pretrial statements that declarants would reasonably expect to be used

prosecutorially”; “ ‘extrajudicial statements . . . contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or confessions’ ”; and

“statements that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later

trial,” id. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193 (second ellipses in original)

(quoting White v. Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 747, 116 L. Ed. 2d 848,

865 (1992) (Thomas & Scalia, JJ., concurring in part and concurring in the

judgment)). “Statements taken by police officers in the course of interrogations are

also testimonial under even a narrow standard.” Id. at 52, 124 S. Ct. at 1364, 158 L.

Ed. 2d at 193.

       In Davis v. Washington, the United States Supreme Court clarified “which

police interrogations produce testimony,” 547 U.S. at 822, 126 S. Ct. at 2273, 165 L.

Ed. 2d at 237, explaining that “[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,” id. at 822, 126 S. Ct. at 2273, 165 L. Ed. 2d at 237. On the other hand,


                                           -14-
                                    STATE V. MILLER

                                    Opinion of the Court



statements “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,”

id. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237. For that reason, “interrogations

solely directed at establishing the facts of a past crime, in order to identify (or provide

evidence to convict) the perpetrator” are testimonial. Id. at 826, 126 S. Ct. at 2276,

165 L. Ed. 2d at 240. In order to determine whether a particular statement is

testimonial or nontestimonial in nature, the reviewing court must ascertain “the

primary purpose of the interrogation.” Bryant, 562 U.S. at 359, 131 S. Ct. at 1156,

179 L. Ed. 2d at 107 (2011) (quoting Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74,

165 L. Ed. 2d at 237).

       The United States Supreme Court noted that the extrajudicial statement at

issue in Davis was made by a declarant who “was speaking about events as they were

actually happening, rather than ‘describ[ing] past events,’ ” id. at 827, 126 S. Ct. at

2276, 165 L. Ed. 2d at 240 (brackets in original) (quoting Lilly v. Virginia, 527 U.S.

116, 137, 119 S. Ct. 1887, 1990, 144 L. Ed. 2d 117, 135(1999) (plurality opinion)),

while the declarant in Crawford was describing events that occurred hours before the

challenged statements were made. In addition, the questions posed to the declarant

in Davis were clearly intended to “elicit[ ] statements” necessary “to resolve the

present emergency, rather than simply to learn (as in Crawford) what had happened

in the past.” Id. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240. Finally, the declarant


                                           -15-
                                   STATE V. MILLER

                                  Opinion of the Court



whose statements were at issue in Crawford “was responding calmly, at the station

house, to a series of questions, with the officer-interrogator taping and making notes

of [the declarant’s] answers,” while the declarant whose statements were at issue in

Davis provided “frantic answers . . . over the phone, in an environment that was not

tranquil, or even (as far as any reasonable 911 operator could make out) safe.” Id. at

827, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240. According to the United States Supreme

Court, the extrajudicial statements at issue in Crawford were testimonial, while the

extrajudicial statements at issue in Davis were not.

      As we have previously noted, Officer Kato testified that he responded to a

domestic dispute at Ms. Wells’s address on 10 December 2012 and made initial

contact with Ms. Wells at an unspecified location outside of her apartment. At that

time, Ms. Wells told Officer Kato that she “was met by her . . . estranged husband, at

approximately 12:00, 12:30, in her apartment, that he entered through an unlocked

door, and that she was kept there against her will for a period of two hours.”

According to Officer Kato, Ms. Wells stated that, during this two-hour period, she and

her estranged husband “argued” to such an extent that “[t]he argument became

heated at one point,” that the argument “escalated to a physical struggle as well,” and

that, “after [the argument] had deescalated to no longer being physical, she was able

to exit the apartment and leave the area in her vehicle.”        After receiving this

information from Ms. Wells, Officer Kato, accompanied by Ms. Wells, “entered the

apartment to be sure that [defendant] was not still there, and checked the area.”


                                         -16-
                                     STATE V. MILLER

                                     Opinion of the Court



After discovering that defendant no longer occupied Ms. Wells’s apartment, Officer

Kato obtained a warrant for defendant’s arrest charging him with criminal domestic

trespass.

       A careful review of the challenged portion of Officer Kato’s testimony satisfies

us that the statements that he described Ms. Wells as having made at the time of the

10 December 2012 domestic disturbance were nontestimonial, rather than

testimonial, in nature.4 As we understand the record, Ms. Wells made the challenged

statements during the course of an ongoing emergency caused by defendant’s entry

into her apartment and defendant’s decision to both detain Ms. Wells at that location

and to physically assault her. Although Ms. Wells did describe certain events that

had occurred before Officer Kato’s arrival outside her apartment, the information

that Ms. Wells provided to Officer Kato led to Officer Kato’s decision to enter the

apartment to ensure that defendant, whose current location was unknown, had

departed and no longer posed a threat to Ms. Wells’s safety. In light of that fact, the

extrajudicial statements that Ms. Wells made to Officer Kato served more than an

information-gathering purpose. In addition, the discussion between Officer Kato and

Ms. Wells was clearly informal and took place in an environment that cannot be



       4Although defendant asserts that the trial court also erred by failing to make findings
and conclusions explaining the basis for its decision to overrule defendant’s confrontation-
based objection to the admission of Officer Kato’s testimony concerning the extrajudicial
statements that Ms. Wells made to him on 10 December 2012, he has not cited any authority
requiring a trial court to make such findings and conclusions relating to an issue similar to
the one before us in this case, and we know of none.

                                            -17-
                                      STATE V. MILLER

                                     Opinion of the Court



reasonably described as “tranquil,” see Davis, 547 U.S. at 827, 126 S. Ct. at 2276-77,

165 L. Ed. 2d at 240. Thus, the trial court did not err by overruling defendant’s

confrontation-based objection and allowing the admission of Officer Kato’s testimony

concerning the statements that Ms. Wells made to him at the time of the 10 December

2012 domestic disturbance.5 As a result, we reverse the Court of Appeals’ decision

and remand this case to the Court of Appeals for consideration of defendant’s

remaining challenges to the trial court’s judgments.

       REVERSED AND REMANDED.




       5  In view of the nontestimonial nature of the challenged statements, we need not
address the validity of the Court of Appeals’ determinations with respect whether defendant
had an adequate opportunity to cross-examine Ms. Wells at his domestic criminal trespass
trial or whether the Court of Appeals erred by refusing to find the admission of the challenged
evidence concerning Ms. Wells’s extrajudicial statements to have been harmless beyond a
reasonable doubt.

                                             -18-
