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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CM-224

                          DANNY ANDRADE, APPELLANT,

                                        V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                 (DVM-2426-12)

                   (Hon. Fern Flanagan Saddler, Trial Judge)


(Argued October 8, 2014                                    Decided January 8, 2015)

      Thomas D. Engle, with whom Sharon L. Burka was on the brief, for
appellant.

      Adrienne Gurley, Assistant United States Attorney, for appellee. Ronald C.
Machen, Jr., United States Attorney, and Elizabeth Trosman, Chrisellen Kolb,
Danny Nguyen, and Ademuyiwa Bamiduro, Assistant United States Attorneys,
were on the brief for appellee.


      Before WASHINGTON, Chief Judge, and BLACKBURNE-RIGSBY and MCLEESE,
Associate Judges.

      MCLEESE, Associate Judge: Appellant Danny Andrade seeks reversal of his

conviction for assault. Mr. Andrade contends that his Sixth Amendment right to
                                          2

confront witnesses against him was violated by the admission of evidence that the

complainant, who did not testify at trial, made statements about the alleged assault

to the police officer who responded to the complainant’s 911 call. We agree and

therefore reverse Mr. Andrade’s conviction.



                                          I.



      The United States’s evidence at trial indicated the following. In November

2012, Shawnice Reed called 911. Ms. Reed indicated that she and her boyfriend

Danny Andrade had gotten into an argument and that Mr. Andrade “been putting

his hands on [Ms. Reed].” Ms. Reed, who sounded excited and upset on the 911

recording, asked the dispatcher to send the police, saying that she had locked

herself in the bathroom but that Mr. Andrade was about to come into the bathroom.

As the 911 call continued, Ms. Reed said that Mr. Andrade left the house, got on a

bike, and went down the street. Ms. Reed then said that the police had arrived and

that she was going to go speak to them.



      Officer James Love and his partner went to Ms. Reed’s residence in

response to the 911 call. They arrived less than five minutes after they were

advised of the call. Ms. Reed met them at the front door, and they walked inside to
                                        3

the living room and began to interview her. Ms. Reed was crying, stuttering,

shaking, and obviously upset. Officer Love, who had been to the residence before,

asked Ms. Reed whether the police had been called because of an incident between

Ms. Reed and Mr. Andrade. After Ms. Reed said yes, Officer Love asked what

had occurred between them.      Still very upset and crying, Ms. Reed gave the

following account to Officer Love.     Ms. Reed and Mr. Andrade got into an

argument, and Mr. Andrade tried to push her down the steps. After Ms. Reed

started to go down the steps, Mr. Andrade came after her, grabbed her by the hair,

and hit her several times in the back of the head and the neck. Ms. Reed broke

free, but Mr. Andrade grabbed her, putting both of his hands on the front of her

neck. Finally, Ms. Reed broke free again, ran into the bathroom, locked herself in,

and called 911.



      At the time that he obtained Ms. Reed’s account of the incident, Officer

Love believed that Mr. Andrade was no longer in Ms. Reed’s residence, and

Officer Love perceived no immediate danger. He questioned Ms. Reed in order to

confirm Mr. Andrade’s involvement and to get the information the police needed

to search for Mr. Andrade.
                                        4

       Officers searched for Mr. Andrade but could not locate him. Later that

evening, Officer Love returned to Ms. Reed’s residence, in response to a call

concerning an unwelcome guest. When he arrived, he saw Mr. Andrade outside

Ms. Reed’s residence. Mr. Andrade said that he wanted Ms. Reed to be removed

from the residence, but Officer Love instead arrested Mr. Andrade for assault in

connection with the earlier incident.



                                        II.



       In criminal trials, the Confrontation Clause of the Sixth Amendment

generally forbids the admission of evidence of out-of-court “testimonial”

statements made by a non-testifying witness. See Michigan v. Bryant, 131 S. Ct.

1143, 1153 (2011).       Out-of-court statements made in response to police

questioning are non-testimonial if the primary purpose of the questioning is “to

enable police assistance to meet an ongoing emergency.” Davis v. Washington,

547 U.S. 813, 822 (2006).1        In determining the primary purpose of police

questioning, courts “objectively evaluate the circumstances in which the encounter

   1
     Statements can be non-testimonial in other circumstances. Bryant, 131 S. Ct.
at 1155. In the present case, the trial court admitted Ms. Reed’s statements solely
on the ground that the statements were directed at responding to an emergency.
The United States defends the trial court’s ruling solely on that ground. We
therefore confine our analysis to that ground.
                                         5

occurs and the statements and actions of . . . both the declarant and [the]

interrogators . . . .” Bryant, 131 S. Ct. at 1156, 1160. “[W]hether an emergency

exists and is ongoing is a highly context-dependent inquiry,” and “must be

objectively assessed from the perspective of the parties to the interrogation at the

time, not with the benefit of hindsight.” Id. at 1158, 1157 n.8. Even if no

emergency actually existed at the time of the questioning, it is sufficient for

purposes of the Confrontation Clause “[i]f the information the parties knew at the

time . . . would lead a reasonable person to believe that there was an

emergency . . . .”   Id. at 1157 n.8.     The government bears the burden of

establishing that a proffered out-of-court statement made by a non-testifying

witness is not testimonial. Frye v. United States, 86 A.3d 568, 571 (D.C. 2014).

We review de novo a trial court’s ruling that a statement is not testimonial. Graure

v. United States, 18 A.3d 743, 756 n.16 (D.C. 2011).



      To determine whether Ms. Reed’s statements to Officer Love were

testimonial or were instead directed at responding to an ongoing emergency, we

must consider both Officer Love’s perspective and Ms. Reed’s perspective. See

Bryant, 131 S. Ct. at 1156, 1160. We turn first to Officer Love’s perspective. Ms.

Reed was crying and appeared obviously upset to Officer Love, which provides

some support for a finding of ongoing emergency. See, e.g., Frye, 86 A.3d at 573
                                         6

(declarant’s “acute emotional distress” provides support for finding that statement

was non-testimonial).    But a number of considerations point in the opposite

direction. At the time Officer Love asked Ms. Reed what happened, he was aware

that he was responding to a report of domestic violence and that Mr. Andrade was

the suspect. Moreover, Officer Love believed that Mr. Andrade was not in the

residence.2 See, e.g., Bryant, 131 S. Ct. at 1159 (domestic-violence suspect’s

departure from crime scene provides support for conclusion that there is no

ongoing emergency); Davis, 547 U.S. at 828-29 (same). Officer Love apparently

saw nothing that led him to think that Ms. Reed was in immediate danger. There

was no evidence that Officer Love saw any injuries to Ms. Reed. See, e.g., State v.

Lucas, 965 A.2d 75, 86 (Md. 2009) (lack of evidence that declarant appeared to

need medical attention provides support for conclusion that there is no ongoing

emergency). Nor was there any evidence that Officer Love had reason to believe

that a weapon had been involved in the incident. See, e.g.¸ Bryant, 131 S. Ct. at

1158-59 (absence of weapon provides support for conclusion that there is no


      2
         Officer Love suggested at trial that he had been aware when he questioned
Ms. Reed that Ms. Reed had said during the 911 call that Mr. Andrade had ridden
away on a bicycle. The government objected to that testimony as non-responsive,
and the trial court sustained the objection but did not strike the testimony. The
parties dispute whether the testimony is part of the record, but we need not resolve
that dispute. For current purposes, we assume that the record is silent as to
whether Officer Love knew that Ms. Reed had told the 911 operator that Mr.
Andrade had ridden away on a bicycle.
                                         7

ongoing emergency).



      The United States argues, however, that Officer Love needed to get an

account from Ms. Reed in order to determine whether there was an emergency,

because he “had no information” about whether weapons had been involved,

whether Ms. Reed needed medical attention, whether others had been involved,

and where Mr. Andrade was. In fact, we do not know exactly what information

Officer Love had when he questioned Ms. Reed, because no one asked that

question at trial. If Officer Love was aware of the contents of the 911 call, then he

did have information suggesting that only Mr. Andrade was involved, because Ms.

Reed mentioned no one else; that no weapons were used, because Ms. Reed did not

mention a weapon and instead referred only to Mr. Andrade’s hands; and that Mr.

Andrade had ridden away on a bike. Similarly, no one asked Officer Love whether

Ms. Reed had any visible injuries or displayed any signs of physical pain. As we

have noted, it was the United States’s burden to establish that Ms. Reed’s

statements were non-testimonial. The United States did not establish at trial that

Officer Love was unaware of the information in the 911 call, and we cannot simply

assume such lack of awareness. Nor can we assume that Officer Love had no

information about whether Ms. Reed might need medical attention, because we do

not know what Officer Love may have observed and reasonably concluded about
                                          8

Ms. Reed’s physical condition.



      Turning to Officer Love’s “statements and actions,” the circumstances of the

questioning appear to have been informal and unstructured, which provides support

for a conclusion that the statements at issue were not testimonial. See, e.g., Bryant,

131 S. Ct. at 1166.     On the other hand, Officer Love did not ask questions

specifically directed at possible emergencies, such as “Are you hurt?”; “Do you

need medical attention?”; “Was a weapon involved?”; or “Did he say anything

about coming back or about harming anyone else?” See, e.g., State v. Clue, 55

A.3d 311, 319 (Conn. App. Ct. 2012) (finding statements on 911 call non-

testimonial where 911 operator’s questions were “directed explicitly toward

resolving the emergency situation and ascertaining whether [declarant] was injured

and/or needed assistance”).      Rather, after confirming that Mr. Andrade was

involved, Officer Love simply asked Ms. Reed what had occurred. We do not

mean to suggest that such an open-ended question will necessarily result in

testimonial statements.      To the contrary, such a question can in some

circumstances be a natural way to determine whether there is an emergency and if

so how to respond to it.       See, e.g., Bryant, 131 S. Ct. at 1165-66 (“What

happened?” -- directed to a victim who had been shot by an unknown assailant --

was the “exact type of question[] necessary to allow the police to assess the
                                          9

situation, the threat to their own safety, and possible danger to the potential victim

and to the public . . . .”) (internal quotation marks omitted). But unlike questions

more specifically tailored to identifying whether an emergency exists, questions

such as “What happened?” are also natural ways for an investigating officer to try

to “establish or prove past events potentially relevant to later criminal

prosecution.” Davis, 547 U.S. at 822 (statement is testimonial if “primary purpose

of the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution”).



      Finally, we note that Officer Love’s stated reasons for questioning Ms. Reed

were to confirm Mr. Andrade’s involvement and to get the information the police

needed to search for Mr. Andrade. Officer Love did not suggest that he was

questioning Ms. Reed to gather information in order to address a possible

emergency; rather, Officer Love appears simply to have been gathering

information so that the police could apprehend a suspect in a completed offense.

The United States argues, however, that Officer Love’s subjective purpose in

questioning Ms. Reed is irrelevant, because the inquiry into the primary purpose of

the questioning is objective in character. The United States’s argument finds

support in Bryant, where the Supreme Court explained that “the relevant inquiry is

not the subjective or actual purpose of the individuals involved in a particular
                                         10

encounter, but rather the purpose that reasonable participants would have had, as

ascertained from the individuals’ statements and actions and the circumstances in

which the encounter occurred.” 131 S. Ct. at 1156. On the other hand, the

Supreme Court in Davis appeared to treat as relevant an officer’s testimony about

the purpose of police questioning. 547 U.S. at 829. Moreover, in at least one other

setting the Supreme Court has treated the subjective purpose of a police questioner

as relevant in determining how an objectively reasonable officer would have

viewed the questioning. See Rhode Island v. Innis, 446 U.S. 291, 301 & n.7 (1980)

(purpose of police in questioning suspect is relevant to whether police should have

known that questioning was reasonably likely to elicit incriminating response); see

also United States v. Brown, 737 A.2d 1016, 1016 (D.C. 1999) (“Although the

intent of the police is not irrelevant, the [Innis] standard remains an objective

one . . . .”) (citation, brackets, and internal quotation marks omitted). We need not

decide whether the United States is correct that Officer Love’s stated reasons for

questioning Ms. Reed are irrelevant. Instead, we simply assume the point for

current purposes.



      Shifting to Ms. Reed’s perspective, Ms. Reed knew at the time she answered

Officer Love’s question that she had already reported the incident to the police,

that she had told the police that Mr. Andrade was involved, that she had mentioned
                                         11

no other participants, that she had not mentioned a weapon, that she had not

mentioned any injuries or need for medical assistance, and that she had told the

police that Mr. Andrade had ridden away on a bicycle. There was no evidence that

Ms. Reed had specific reason to fear that Mr. Andrade was planning to return soon

or that he posed an immediate threat to any other person. Nor was there evidence

that Ms. Reed had suffered injuries requiring medical attention. Finally, Officer

Love’s open-ended question would not reasonably have signaled to Ms. Reed that

Officer Love was seeking information to address an ongoing emergency rather

than to investigate past criminal conduct.



      Ms. Reed’s answers to Officer Love’s question also do not suggest a focus

on dealing with an emergency. Ms. Reed did not request medical assistance, ask

the police to take any other emergency steps, or communicate any other

information indicating that there was an ongoing emergency. Rather, Ms. Reed

simply described the circumstances of the earlier incident. See, e.g., Davis, 547

U.S. at 830 (in finding statement testimonial, Court emphasizes that statement

“deliberately recounted, in response to police questioning, how potentially criminal

past events began and progressed”).



      Considering the circumstances in their totality, we find that the United States
                                         12

did not carry its burden of establishing that the primary purpose of the questioning

in this case was to enable the police to meet an ongoing emergency. At bottom,

the United States established only that Ms. Reed had just reported a domestic-

violence incident, that she was very upset, that the alleged perpetrator was no

longer on the scene but had not yet been located, and that the questioning was

relatively informal. The Supreme Court has twice suggested that comparable

circumstances do not suffice to render statements non-testimonial. Bryant, 131 S.

Ct. at 1159 (suggesting that there is no ongoing emergency if suspect involved in

“private dispute,” such as domestic-violence incident, “flees with little prospect of

posing a threat to the public”); Davis, 547 U.S. at 828 (Court states that “the

emergency appears to have ended (when [the domestic-violence suspect] drove

away from the premises)” and that statements given thereafter in response to

questions by 911 operator “could readily be maintained” to have been testimonial);

cf. id. at 829-32 (in companion case, Hammon v. Indiana, Court holds that oral

statements made by domestic-violence complainant to police officers were

testimonial, where there was no emergency in progress when officers arrived on

scene; complainant initially told police things were fine; officers separated

complainant and suspect; statements recounted details of completed incident; and

officer ultimately had complainant execute affidavit).
                                        13

      Numerous other courts have held statements to be testimonial in

circumstances comparable to those of the present case. See, e.g., Lucas, 965 A.2d

at 76-87 (statements by domestic-assault complainant were testimonial, where

statements were made in response to questioning by officers responding to 911

call; complainant was crying and upset; no one else was in apartment; one officer

had waited outside with person who turned out to be defendant; although

complainant had swollen eyes and marks on neck, there was no evidence that she

had injuries requiring medical attention; and statements recounted circumstances of

completed offense); Commonwealth v. Lao, 877 N.E.2d 557, 561, 565-66 (Mass.

2007) (same where complainant, who told officer that assailant had threatened her

and tried to run her over, had made several phone calls after incident and before

calling 911; complainant was not in peril at time of statements, because alleged

assailant had left); State v. Moua Her, 750 N.W.2d 258, 265-69 (Minn. 2008)

(same where police officer spoke to complainant in public place right after alleged

assault; assailant was not present; there was no evidence that assailant intended to

return to assault complainant or posed threat to others; and although complainant

was clearly upset and appeared to have injuries, there was no evidence that officer

thought complainant needed medical attention), cert. granted, vacated, and

remanded on other grounds, 555 U.S. 1092 (2009), opinion on remand, 781

N.W.3d 869 (Minn. 2010); State v. Mechling, 633 S.E.2d 311, 315, 323-25 (W.
                                        14

Va. 2006) (same where complainant was crying and “really shook up”; there was

no emergency in progress when officers arrived, because assailant had clearly

departed); Wright v. State, 434 S.W.3d 401, 402-08 (Ark. Ct. App. 2014) (same

where officer found complainant, who was “in and out of a panic state,” suffering

from multiple stab wounds; while awaiting ambulance, officer “got as much

information from [complainant] as [he] possibly could”; assailant had left area);

Dixon v. State, 244 S.W.3d 472, 486-87 (Tex. App. 2014) (same where officer

responded to 911 call reporting that assault had just happened; assault had taken

place elsewhere; complainant had then gone home, and assailant was not present;

complainant was very upset and scared, and expressed concern that assailant might

bother her; complainant had knot under her eye; and officer testified that he

collected information to provide to prosecutor); Zapata v. State, 232 S.W.3d 254,

256-60 (Tex. App. 2007) (same where complainant was crying and shaking and

had scratches, red mark, and bruise; when police arrived, complainant was outside

residence and assailant was inside residence; officer testified that she was

gathering evidence for prosecution).



      None of the cases cited by the United States are to the contrary, because

none involve circumstances comparable to those of the present case. The Supreme

Court in Bryant held that the statements at issue in that case were not testimonial,
                                         15

but those statements were obtained from a victim who was lying on the ground in a

gas station with a gunshot wound to the abdomen. 131 S. Ct. at 1150. The Court

in Bryant emphasized the severity of the victim’s injuries and the possible threat to

the public posed by a shooting suspect whose motives for shooting the victim were

unknown. Id. at 1163-66. The Court also distinguished its earlier holding in

Hammon, the companion case to Davis, explaining that the statements deemed

testimonial in Hammon arose in the context of a domestic-violence assault that

involved neither a weapon nor serious injury. Id. at 1158-59.



      The United States also relies on our recent decision in Frye, but that case

involved very different circumstances. The police in Frye responded to a 911 call

from a child for an assault in progress. 86 A.3d at 569. When they arrived at the

residence in question, they found a man and a woman shouting at each other. Id.

There were also five children in the residence. Id. The defendant had a fist

clenched, and the woman was backing away and appeared nervous. Id. As the

police separated the man and the woman, an officer asked the woman what

happened. Id. at 569-70. At the time he asked the woman what happened, the

officer knew only that he was responding to a report by a child that the child’s

parents were fighting. Id. at 570. The officer did not know the number of people

involved in the incident, the identity of the assailant, or whether a weapon was
                                        16

involved. Id. at 570. As she responded, the woman was shaking and crying, had

visible abrasions, and appeared to be in need of medical assistance. Id. at 570.

Meanwhile, the man, who was five to ten feet away in a different room, had his

fists balled up and was speaking loudly to a different officer. Id. As he was

removed from the residence soon afterwards, the man kicked luggage and other

items. Id. at 573.



      In concluding that the woman’s response to the officer’s question was not

testimonial, this court emphasized a number of circumstances that are not present

in this case: the officers arrived in the middle of a heated argument; there were a

number of children present who needed to be protected; the woman appeared to

need medical assistance; and the officers were still trying to clarify and control a

fluid, confused, and volatile situation. Frye, 86 A.3d at 571-74. The conclusion

that the questioning in Frye had the primary purpose of addressing an ongoing

emergency thus does not support the same conclusion in the present case. The

other cases relied upon by the United States are similarly distinguishable. See,

e.g., Smith v. United States, 947 A.2d 1131, 1133-35 (D.C. 2008) (statements made

by domestic-violence complainant during 911 call were not testimonial;

complainant was summoning help to deal with emergency, complainant feared

further assault and was unsure whether assailant was still in residence, and
                                        17

complainant had suffered injuries and requested ambulance); Long v. United

States, 940 A.2d 87, 90-99 (D.C. 2007) (statements made by assault complainant

were not testimonial; complainant was extremely upset, had visible injury to head,

and was covered in blood; complainant flagged police officer down but did not

directly respond to officer’s questions, instead saying “Look what she did to my

face.” and “[S]he cut my face.”; when defendant walked into area, complainant

exclaimed “There she is!”); Lewis v. United States, 938 A.2d 771, 773-82 (D.C.

2007) (initial statements made by assault complainant to police officer were not

testimonial; complainant was crying and very upset, was bleeding from multiple

lacerations from head and face, and had large amount of blood on her shirt; officer

asked if complainant needed medical assistance and complainant indicated that she

did; at time officer asked complainant what happened, officer did not know

identity of assailant or whether assailant was armed; officer’s questions were

designed to gather information to respond to emergency).



      In sum, we hold that Ms. Reed’s statements to Officer Love were

testimonial.   We further conclude that the admission of evidence about those

statements was not harmless beyond a reasonable doubt. See, e.g., Lewis, 938

A.2d at 776 (erroneous admission of testimonial statements requires reversal unless

harmless beyond reasonable doubt). But for Ms. Reed’s statements to Officer
                                           18

Love, the only description of the assault would have been Ms. Reed’s vague

statement during the 911 call that Mr. Andrade “been putting his hands on [her].”

That Ms. Reed’s statements to Officer Love were the crux of the prosecution’s

case is demonstrated by the emphasis given to those statements by the prosecutor

in closing argument. See, e.g., Morten v. United States, 856 A.2d 595, 602 (D.C.

2004) (“A prosecutor’s stress upon the centrality of particular evidence in closing

argument tells a good deal about whether the admission of the evidence was . . .

prejudicial.”) (brackets and internal quotation marks omitted). Moreover, the trial

court clearly viewed Ms. Reed’s statements to Officer Love as critical, because it

relied entirely on those statements, rather than on the contents of the 911 call,

when explaining the reasons for its verdict. Under the circumstances, we conclude

that reversal is required. See Drayton v. United States, 877 A.2d 145, 151 (D.C.

2005) (accepting United States’s concession that admission of testimonial

statements required reversal, where trial court in bench trial “based its verdict

entirely on [the] statements”).3


   3
      Given our disposition of the case, we see no need to address Mr. Andrade’s
claim that, by the manner in which it advised Mr. Andrade about the right not to
testify, the trial court chilled Mr. Andrade’s exercise of the right to testify. We do,
however, briefly address Mr. Andrade’s challenge to the admissibility of Ms.
Reed’s 911 call as an excited utterance, because that issue could be expected to
arise in any retrial. In this court, Mr. Andrade argues that there was inadequate
information about how much time passed between the alleged assault and the 911
call. It is unclear whether Mr. Andrade raised that argument in the trial court. In
                                                                        (continued . . .)
                                         19



      The judgment of the trial court is therefore reversed, and the case is

remanded for further proceedings.


                                                    So ordered.




(. . . continued)
any event, the 911 call’s contents permit a reasonable inference that the call “was
made within a reasonably short period of time after the startling event.” Castillo v.
United States, 75 A.3d 157, 164 (D.C. 2013). Specifically, Ms. Reed, who
sounded excited and upset in the 911 call, said that she had locked herself in the
bathroom and expressed concern that appellant was about to come in.
