            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 12, 2019
              Plaintiff-Appellant,

v                                                                  No. 344191
                                                                   Berrien Circuit Court
TONY ALLEN CLARK,                                                  LC No. 2017-005206-FH

              Defendant-Appellee.


Before: RIORDAN, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

       In this domestic violence action, the prosecution appeals by leave granted1 the trial
court’s order excluding as inadmissible statements made by the complainant to a law
enforcement officer who responded to a 911 call for help.2 The trial court held that the
complainant made these statements in response to police questioning after the emergency had
subsided and, therefore, her statements were inadmissible under the Sixth Amendment’s
Confrontation Clause because they were testimonial in nature. We affirm.

       Defendant, Tony Allen Clark, is charged with arson, preparation to burn, MCL
750.79(1)(d)(vi); domestic violence, third offense, MCL 750.81(5); assault with a dangerous
weapon, MCL 750.82; possession of a firearm during the commission of a felony, MCL
750.227b; and malicious destruction of property less than $200, MCL 750.377a(1)(d). Pursuant
to MCL 768.27c, the prosecution filed a notice of intent to present evidence of the complainant’s



1
 People v Clark, unpublished order of the Court of Appeals, entered October 2, 2018 (Docket
No. 344191).
2
  Anticipating that the complainant would not appear at trial, the prosecution sought a pretrial
evidentiary ruling permitting the admission of the complainant’s statements through the
responding law enforcement officer’s testimony under the statutory hearsay exception
established by MCL 768.27c.
911 call and her later statements to the responding law enforcement officer. Clark objected to
the notice, claiming that the admission of these statements without the presence of the
complainant would violate his confrontation right.

        The trial court held a hearing on the motion, at which one of the responding law
enforcement officers was the sole witness. Deputy Nicholas Brian VonKoenig of the Berrien
County Sherriff’s Office testified that on December 25, 2017, at around 2:00 a.m., he and two
other officers responded to a 911 dispatch call concerning possible domestic violence. Dispatch
advised that a woman called 911 seeking help and “to hurry.” Because of bad weather, it took
law enforcement approximately 20 or 25 minutes to respond. Dispatch also advised that the
woman reported that a weapon was involved. When the deputy arrived, he observed “a male
leave the front half of the house into another section of the home,” and he heard yelling and
“some loud banging.” The officers entered the residence through the kitchen and observed Clark
yelling at a woman at the other end of the house. Deputy VonKoenig said that Clark “was angry,
upset, yelling,” and that, at first, Clark did not notice their arrival. The deputy ordered him back
into the kitchen where the officers had entered, and Clark complied. The officers did not locate
any weapons when they detained and searched Clark.

        Deputy VonKoenig identified the woman as the complainant and explained that she lived
at the residence with Clark. The deputy described the complainant as “very shaken up” and
frightened. He spoke with the complainant in the living room area, while the other officers
detained Clark in the kitchen. Deputy VonKoenig could hear Clark shouting in the other room,
saying “it wasn’t true” and yelling about “getting sent away.” Because it was interfering with his
ability to question the complainant, the deputy walked back to the kitchen and told Clark to be
quiet. The deputy was certain that the complainant heard him do so. Because of Clark’s
“outburst,” the officers removed him from the home and placed him in the back of a patrol
vehicle.

        The deputy described the residence as “a decent size house,” observing that there was no
direct line of sight from the living room to the kitchen, separated by a wall and about 25 or 30
feet accessed by a narrow hallway. He recalled that the house “was kind of in a mess” and that a
lot of property appeared destroyed. He specifically mentioned a “large Zippo lighter fluid can,”
which he observed on a mattress in the living room.

        Deputy VonKoenig testified that the complainant told him about what had transpired and
Clark’s “specific physical threats.” The complainant advised that Clark was intoxicated and was
“upset about a camera.” She also said that Clark “threatened animals they had,” including a
lizard, a dog, and several cats. The deputy recalled seeing a dog and the lizard, but he did not
recall seeing any cats. In addition, the complainant said Clark was “dumping Zippo lighter fluid
around the house, threatening to light it on fire,” and that, at one point, “he pulled out a firearm
and held it to her face, threatening to kill her.” Deputy VonKoenig did not relate what questions
he asked the complainant, only testifying as to her responses.

       On cross-examination, Deputy VonKoenig confirmed that Clark immediately complied
with the officers’ verbal order to put up his hands, at which point Clark was detained and
handcuffed. Although he noticed the lighter fluid bottle, he could not recall smelling or seeing
any type of flammable liquid around the kitchen, hallway, or living room and had no fear that

                                                -2-
there was any danger of the home catching fire. If he had thought there was any danger, the
deputy admitted that he would not have remained in the home. He was not concerned about
Clark accessing a firearm because Clark was handcuffed and “other officers were standing with
him.” The deputy agreed that the primary reason Clark was moved to the vehicle was so that the
deputy could continue interviewing the complainant without interruption.

        The trial court held that the complainant’s statements to the 911 operator and responding
police officers were substantively admissible under MCL 768.27c because they were made to
law enforcement officers, related to domestic abuse, and were made under circumstances that
indicated trustworthiness.3 Furthermore, the statements the complainant made during the course
of the 911 call were nontestimonial as she was informing the operator of emergency events
transpiring in real time. However, the trial court held that statements made by the complainant in
response to questioning by Deputy VonKoenig “after [d]efendant was handcuffed and detained
by another deputy in a different room of the residence cannot be found to be part of an ongoing
emergency and therefore are inadmissible as testimonial in nature.” The trial court denied the
prosecution’s motion for reconsideration. The prosecution now appeals.

        Whether the admission of evidence violates a defendant’s Sixth Amendment right to
confront his or her accuser is a question of constitutional law that this Court reviews de novo.
See People v Nunley, 491 Mich 686, 696-697; 821 NW2d 642 (2012). We review the trial
court’s factual findings for clear error. People v Fackelman, 489 Mich 515, 571; 802 NW2d 552
(2011). We hold that the trial court did not err in excluding statements the complainant made in
response to law enforcement questioning. These statements were testimonial in nature because
they did not relate to an ongoing emergency but rather concerned past events relevant to a
potential criminal prosecution.

        “In MCL 768.27c, the Legislature determined that under certain circumstances,
statements made to law enforcement officers are admissible in domestic violence cases.” People
v Meissner, 294 Mich App 438, 445; 812 NW2d 37 (2011). This provision is “a substantive rule
of evidence reflecting specific policy concerns about hearsay[4] in domestic violence cases.” Id.
Nevertheless, this Court recognized in Meissner that “[c]ertain testimony offered pursuant to
MCL 768.27c may be subject to challenge based on the Confrontation Clause” of the United
States Constitution and its state constitutional counterpart. Id. at 446 n 2.



3
  In his appellate brief, Clark attempts to use the prosecutor’s appeal as an opportunity to
challenge the trial court’s ruling regarding the 911 call, arguing that the complainant’s statements
to the operator were not “made under circumstances that would indicate the statement’s
trustworthiness,” as required by MCL 768.27c(1)(d). We decline to address this argument at this
juncture because Clark did not properly raise it in a cross-appeal pursuant to MCR 7.207. See
People v Kieronski, 214 Mich App 222, 225 n 2; 542 NW2d 339 (1995).
4
  “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Subject
to certain exceptions, hearsay is generally inadmissible. MRE 802.


                                                -3-
       Consistent with Meissner, the parties agree with the unremarkable proposition that
evidence may satisfy the statutory hearsay exception requirements of MCL 768.27c and yet be
inadmissible at trial if its admission would violate a defendant’s constitutional right to
confrontation. See id. “[O]ut-of-court statements that are testimonial are barred under the
Confrontation Clause unless the declarant is unavailable to testify at trial and the defendant had a
prior opportunity to cross-examine the declarant, regardless of whether the statements are
otherwise deemed reliable under the rules of evidence.” People v Lonsby, 268 Mich App 375,
390; 707 NW2d 610 (2005) (emphasis added). Therefore, in resolving this appeal, we must
determine whether the statements made by the complainant to Deputy VonKoenig were
testimonial.

        As our Supreme Court has noted, Fackelman, 489 Mich at 525, the Sixth Amendment of
the United States Constitution provides a right of confrontation through language nearly identical
to the Michigan Constitution: “In all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him . . . .” US Const, Am VI (emphasis added). The
United States Supreme Court held that the Confrontation Clause prohibits the admission of
“testimonial statements” of a witness who does not appear at trial unless the witness is declared
unavailable and the defendant had a prior opportunity for cross-examination. Crawford v
Washington, 541 US 36, 53-54; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Although Crawford
explained that “[s]tatements taken by police officers in the course of interrogations,” are
necessarily testimonial, it declined to define what it meant by “interrogation.” Id. at 52.
Subsequent cases have shed additional light on this question. In Davis v Washington, 547 US
813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006), the United States Supreme Court, although
again expressly declining “to produce an exhaustive classification of all conceivable statements,”
clarified the distinction between a testimonial and a nontestimonial statement, holding:

       Statements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing emergency. They
       are testimonial when the circumstances objectively indicate that there is no such
       ongoing emergency, and that the primary purpose of the interrogation is to
       establish or prove past events potentially relevant to later criminal prosecution.
       [Emphasis added.]

        Davis, and its companion case, Hammon v Indiana, both involved domestic violence. In
Davis, the declarant made statements to a 911 operator during a domestic disturbance concerning
her former boyfriend, telling the operator that “He’s here jumpin’ on me again,” and “He’s usin’
his fists.” Id. at 817. The Supreme Court held that the declarant’s statements were
nontestimonial because she “was speaking about events as they were actually happening, rather
than describ[ing] past events” and that any reasonable listener would objectively recognize “the
elicited statements were necessary to be able to resolve the present emergency, rather than
simply to learn (as in Crawford) what had happened in the past.” Id. at 827 (quotation marks and
citation omitted; alteration in original). Accordingly, the Davis Court concluded that the
circumstances of the interrogation “objectively indicate its primary purpose was to enable police
assistance to meet an ongoing emergency.” Id. at 828.



                                                -4-
         In Hammon, police responded to a domestic disturbance call. Id. at 819. The declarant
maintained that “nothing was the matter” and gave police permission to enter the house. Id.
(quotation marks omitted). Inside the house, the police observed a damaged gas heating unit
with its glass front shattered on the floor. Id. One officer remained with the alleged assailant
while another spoke with the declarant in another room. Id. The assailant became angry when
the police required him to stay separated from the declarant, who signed an affidavit describing
how the assailant broke the furnace, shoved her down into the broken glass, hit her in the chest,
broke their lamps and phone, and attacked her daughter. Id. at 819-820. Although the declarant
did not appear at the trial, the trial court admitted her statements under state evidentiary rules.
Id. at 820. The Court held it “entirely clear from the circumstances that the interrogation was
part of an investigation into possibly criminal past conduct,” and that, viewed objectively, “the
primary, if not indeed the sole, purpose of the interrogation was to investigate a possible
crime[.]” Id. at 829-830. Although the interrogation was not conducted at a police station, there
was a certain formality to it. Id. at 830. The police forcibly separated the defendant from the
declarant and the officer and did not permit the defendant to participate. Id. Moreover, the
statements “deliberately recounted, in response to police questioning, how potentially criminal
past events began and progressed,” and the interrogation “took place some time after the events
described were over.” Id. The Court rejected the state Supreme Court’s implication that
“ ‘initial inquiries’ ” by police officers at a crime scene are never testimonial, explaining that
where “statements were neither a cry for help nor the provision of information enabling officers
immediately to end a threatening situation, the fact that they were given at an alleged crime
scene and were ‘initial inquiries’ is immaterial.” Id. at 832.

        In Michigan v Bryant, 562 US 344, 359; 131 S Ct 1143; 179 L Ed 2d 93 (2011), the
United States Supreme Court again addressed the primary purpose test, but this time in the
context of a nondomestic dispute where the “ ‘ongoing emergency’ ” extended “beyond an initial
victim to a potential threat to the responding police and the public at large.” The Court
distinguished domestic violence cases, recognizing that these types of cases “often have a
narrower zone of potential victims than cases involving threats to public safety.” Id. at 363.
Accordingly, its decisions in Davis and Hammon “focused only on the threat to the victims and
assessed the ongoing emergency from the perspective of whether there was a continuing threat to
them.” Id. The Court also reaffirmed that “whether an emergency exists and is ongoing is a
highly context-dependent inquiry,” id., and that “the existence vel non of an ongoing emergency
is not the touchstone of the testimonial inquiry,” id. at 374, but “simply one factor . . . that
informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation,” id. at 366.

       Accordingly, as the Supreme Court did in Crawford, Davis, and Hammon,

       when a court must determine whether the Confrontation Clause bars the
       admission of a statement at trial, it should determine the “primary purpose of the
       interrogation” by objectively evaluating the statements and actions of the parties
       to the encounter, in light of the circumstances in which the interrogation occurs.
       [Id. at 370.]

       In this case, the prosecution’s primary argument is that the testimony suggested that the
complainant was actually unaware that the emergency had ended. It directs this Court’s attention
to the Supreme Court’s statement in Bryant that “the parties’ perception that an emergency is

                                                -5-
ongoing is among the most important circumstances that courts must take into account in
determining whether an interrogation is testimonial,” id., arguing that if the focus is on ending a
threatening situation, the potential of fabrication is diminished. But because the inquiry is an
objective one, we do not overvalue the complainant’s actual perception, which, in any event, is
speculative without her testimony. Rather, after examining the testimony of Deputy VonKoenig,
we conclude that any objective participant in the position of the complainant or the deputy would
have naturally understood that the emergency was over and that the questioning was for the
purpose of collecting evidence for subsequent use in a criminal prosecution.

        It is absolutely certain that Deputy VonKoenig, from his perspective and experience as a
police officer, was aware that the emergency had ended. He testified that he had no concern for
his safety. He further testified that he asked the other officers to remove Clark from the home
and into a patrol car for the very purpose of allowing him to conduct his interview without
Clark’s interference. We cannot know from this record how the complainant may have
perceived the situation. But from the deputy’s testimony, we easily identify all of the hallmarks
of an investigatory interview similar to the circumstances the United States Supreme Court found
testimonial in Hammon. Although the complainant may not have known exactly what was
taking place in the kitchen, no reasonable participant would still believe that Clark posed a
danger after his removal from the home. It seems similarly unlikely that, even before Clark’s
removal, a reasonable participant would think themselves in any danger after hearing the police
verbally direct Clark to put his hands up and submit to their authority. To the contrary, a
reasonable participant would objectively recognize that, with knowledge that Clark was recently
reported to be in possession of a gun, the responding police officers would take steps to restrict
his freedom of movement and ensure he did not pose a continuing threat. The prosecution points
to no portion of the complainant’s statements relevant to counteracting an ongoing emergency.
Rather, the statements appear to solely relate past events possibly relevant to a criminal
prosecution. Davis, 547 US at 822.

        We find the prosecution’s emphasis on the reported involvement of a gun unpersuasive.
The prosecution cites a statement from Bryant, 562 US at 364, distinguishing Hammon and
suggesting that it was significant that the assailant in Hammon was unarmed. The prosecution
takes this statement from Bryant entirely out of context. Initially, the statement from Bryant is
nothing more than dicta suggesting that, perhaps, “separation by a single household wall” might
have been insufficient to end the emergency if the assailant had been armed. Id. Moreover, the
Bryant Court expressly recognized that the circumstances presented in that case concerned a
nondomestic dispute where the ongoing emergency “extend[ed] beyond an initial victim to a
potential threat to the responding police and the public at large.” Id. at 359. In this domestic
abuse disturbance, there was no remaining threat once Clark submitted to police authority. And
although the officers did not initially locate the reported gun, Deputy VonKoenig had no fear for
his or anyone else’s safety after Clark was searched and restrained. Again, we conclude that no




                                                -6-
one in the complainant’s position would reasonably believe that the emergency was continuing
after police responded to the 911 call and subdued Clark. 5

       Considering all of these circumstances from an objective standpoint, the complainant’s
statements to Deputy VonKoenig unmistakably recounted “what happened,” rather than “what is
happening.” See Davis, 547 US at 830 (quotation marks omitted). These statements were
testimonial in nature because they did not relate to an ongoing emergency but rather concerned
past events relevant to a possible criminal prosecution. See id. at 822.

       Affirmed.




                                                          /s/ Michael J. Riordan
                                                          /s/ Jane E. Markey
                                                          /s/ Anica Letica




5
   The prosecution also suggests that it is speculative whether the complainant knew Clark
submitted to police authority. We cannot agree. Deputy VonKoenig testified that he believed
that the complainant heard him tell Clark to be quiet when the other officers removed him from
the home to a patrol car. In any event, it is a fair inference that the complainant would have
heard or understood what was happening in response to her 911 call for police assistance. The
trial court correctly understood that the test is objective and, consequently, whether the
complainant actually heard the officer give the command or saw Clark submit to police authority
is not outcome determinative.


                                              -7-
