                           District of Columbia
                            Court of Appeals
No. 14-CM-208
                                                                OCT 13 2016
ANDREW WILLS,
                                        Appellant,

      v.                                                        DVM-2423-13


UNITED STATES,
                                        Appellee.


            On Appeal from the Superior Court of the District of Columbia
                                 Criminal Division

      BEFORE: BECKWITH and MCLEESE, Associate Judges; and REID, Senior Judge.

                                  JUDGMENT

               This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby

             ORDERED and ADJUDGED that appellant’s conviction for attempted
theft is reversed, and the matter is remanded to the Superior Court for further
proceedings. Appellant’s assault conviction is affirmed.

                                           For the Court:




Dated: October 13, 2016.

Opinion by Associate Judge Corinne Beckwith.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

              DISTRICT OF COLUMBIA COURT OF APPEALS

                                    No. 14-CM-208
                                                                        10/13/16
                              ANDREW WILLS, APPELLANT,

                                             V.

                               UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                 (DVM-2423-13)

                        (Hon. Rhonda Reid Winston, Trial Judge)

      Christine Pembroke was on the brief for appellant.

      Ronald C. Machen Jr., United States Attorney at the time the brief was filed,
and Elizabeth Trosman, Elizabeth H. Danello, and James A. Ewing, Assistant
United States Attorneys, were on the brief, for appellee.

(Submitted January 7, 2015                             Decided October 13, 2016)

      Before BECKWITH and MCLEESE, Associate Judges, and REID, Senior Judge.

      BECKWITH, Associate Judge: After a bench trial, the trial judge in this case

convicted appellant Andrew Wills of simple assault1 and attempted second-degree




      1
          D.C. Code § 22-404 (2012 Repl.).
                                         2

theft2 stemming from an altercation between Mr. Wills and his wife in a gas station

parking lot. Mr. Wills contends that his wife’s on-the-scene statement that Mr.

Wills “snatched” her keys from her—uttered in response to a police officer’s

question about “how he got the keys”—was admitted in violation of the

Confrontation Clause of the Sixth Amendment of the U.S. Constitution. U.S.

Const. amend. VI, cl. 2.     We conclude that the complainant’s statement was

“testimonial” under this court’s and the Supreme Court’s Confrontation Clause

decisions, that Mr. Wills has satisfied the requirements of the plain error test that

applies to his claim, and that his conviction for attempted theft must therefore be

reversed. We affirm Mr. Wills’s conviction for assault, however, because the

admission of the complainant’s statement did not affect the assault charge and

because we find no merit in Mr. Wills’s other claims challenging that conviction.


                                         I.


      Ndya Silas testified that she was coming out of a gas station convenience

store in Northeast Washington, D.C., one evening when she heard a scream. She

turned and saw a man on top of a woman inside a yellow Ford Mustang that was




      2
          D.C. Code §§ 22-1803, -3211, -3212 (b) (2012 Repl.).
                                          3

parked near the station’s air pump.3 The man, whom she described as wearing a

black jacket and jeans, struck the woman at least once with his fists and pulled her

out of the car by her hair. Ms. Silas called 911 and reported the assault to the

police, who arrived about two minutes later. She testified that she did not hang up

the phone until she saw the police arriving at the gas station with their lights on,

that she left the scene when the police arrived, and that the man she saw striking

the woman did not leave the scene. A recording of Ms. Silas’s 911 call reporting

these observations was played at trial.


      Over defense counsel’s objection on both hearsay and Confrontation Clause

grounds, the government introduced a recording of another 911 call—this one

placed by an unidentified caller who stated that he was at a gas station watching a

man and a woman “physically arguing” near a yellow Mustang. The caller also

stated that the man, whom he (like Ndya Silas) described as wearing a black jacket

and jeans, had thrown a set of car keys “over onto the highway.”


      Metropolitan Police Department Sergeant Brett Parson testified that he

responded to “a radio assignment for an assault in progress.” When he arrived at

the gas station, he saw two people next to a yellow Mustang—a woman seated on a

      3
        According to Ms. Silas, neither the Mustang nor a red truck parked near it
was there two minutes earlier when she walked into the store to buy a snack.
                                        4

step and a man standing above her. The woman was crying and “breathing a little

heavily.” The officer exited his police car and “motioned to the female to come to

[him].” According to Sergeant Parson, she got up “very quickly” and walked over

to him, looking over her shoulder toward the man as she approached the officer.

The officer asked if she was okay and she “answered in the affirmative.” Pointing

to Kenilworth Avenue, she then told him, “You need to get my phone. He threw

my phone into the street. . . . And he’s got my keys. You need to get my keys.”

The officer then asked “how he got the keys,” to which she responded, “He

snatched them from me.” Sergeant Parson then called another officer over to

conduct a “more thorough interview.” A third officer later recovered keys from

the man at the scene, whom Sergeant Parson identified at trial as the appellant,

Andrew Wills. According to Sergeant Parson, the woman at the scene described

herself as Mr. Wills’s wife, though her name was never introduced into evidence.


      The trial court found Mr. Wills guilty of attempted second-degree theft and

assault.4 The court first determined that Mr. Wills was the person who committed

the assaults described by Ms. Silas and the anonymous 911 caller. The court then

also found, based on Sergeant Parson’s recounting of the complainant’s statements,

      4
         The government dismissed a third charge, destruction of property (for
allegedly throwing the complainant’s cell phone), at the close of its case.
                                         5

that Mr. Wills took his wife’s keys with the intent to deprive her of those keys.

Mr. Wills timely appealed.


                                         II.


      Mr. Wills contends that the admission of his wife’s statement that he

“snatched” her keys violated his constitutional right to confrontation.5         The

Confrontation Clause “guarantees a defendant’s right to confront those who bear

testimony against him,” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309

(2009) (internal citations and quotation marks omitted), and ensures that he has a

“full and fair opportunity” to challenge the evidence against him through

adversarial cross-examination of the government’s witnesses.           Delaware v.

Fensterer, 474 U.S. 15, 22 (1985). It is not enough for the government to present

reliable evidence; the Confrontation Clause requires that “reliability be assessed in

a particular manner: by testing in the crucible of cross-examination.” Crawford v.

Washington, 541 U.S. 36, 61 (2004). The protection is thus procedural, reflecting

the Framers’ judgment “about how reliability can best be determined” to ensure


      5
           Mr. Wills argues that the admission of the complainant’s other
statements—including “he’s got my keys” and “[y]ou need to get my keys”—also
violated his right to confrontation. Because our analysis of the “snatch[ing]”
statement is dispositive, we need not decide whether these other statements should
have been excluded.
                                          6

fairness in the criminal justice system. Id.


      As the U.S. Supreme Court has interpreted it, the Confrontation Clause bars

admission of “testimonial” out-of-court statements unless the witness testifies at

trial or the witness is unavailable and the defendant has had prior opportunity for

cross-examination. Id. at 68. In the consolidated cases Davis v. Washington and

Hammon v. Indiana, 547 U.S. 813 (2006), which both involved the admissibility of

the complainant’s out-of-court statements about a domestic dispute, the Supreme

Court held that 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.”

Statements are testimonial, however, “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.


      Mr. Wills’s trial counsel never argued to the trial court that the

complainant’s statements were testimonial and that they should be excluded on

Confrontation Clause grounds. He objected to the statements’ admission, but only

on hearsay grounds, prompting a discussion about whether they were admissible as

excited utterances and ultimately a ruling by the trial court that they were. Because
                                          7

Mr. Wills’s trial counsel argued only that the complainant’s statements were

inadmissible hearsay, we apply a plain-error standard of review to his

constitutional claim. Long v. United States, 940 A.2d 87, 91 (D.C. 2007); Marquez

v. United States, 903 A.2d 815, 817 (D.C. 2006). Under that standard, Mr. Wills

must show error that is plain, that affected his substantial rights, and that seriously

affected the fairness, integrity, or public reputation of the judicial proceedings.

Guevara v. United States, 77 A.3d 412, 418 (D.C. 2013).


         A. Error


      Here, the complainant did not testify at trial and Mr. Wills did not have prior

opportunity to cross-examine her, so Mr. Wills’s Confrontation Clause claim turns

on whether the complainant’s statement that he “snatched” her keys was

“testimonial” under Crawford. In assessing the testimonial nature of statements

made when police respond to an emergency call for help, we “objectively

evaluate” the circumstances and “the statements and actions of both the declarant

and [the] interrogators,” and we consider these circumstances from the

perspectives of both parties to the interrogation. Michigan v. Bryant, 562 U.S. 344,

359, 367 (2011).


      Turning first to Sergeant Parson’s actions and the events from his viewpoint,

the record is silent as to whether the officer knew what the 911 callers had reported
                                         8

as he drove to the gas station within minutes of receiving a call about an assault in

progress. When he arrived, by all indications the incident was over, and the

evidence did not suggest that the scene he arrived to was volatile or chaotic.

Sergeant Parson had the support of at least two other officers who arrived in

marked cruisers at the same time he did, he testified that there were “people

coming and going from the gas station that didn’t pay much of a mind,” and he

immediately separated the complainant from Mr. Wills by motioning her over to

him. The officer did not testify that he saw any weapons, Mr. Wills and the

complainant were not physically fighting or arguing, and although the complainant

was crying and breathing heavily—facts that in some cases could suggest an

ongoing emergency6—she had no apparent injuries. Though Mr. Wills was still on

the scene and was described as standing over the complainant when Sergeant

Parson first arrived, and though the complainant looked back at Mr. Wills when

she walked toward the officer, Sergeant Parson did not approach the scene as

would an officer expecting to encounter armed and dangerous individuals, drawing

his gun, for example, or ordering Mr. Wills onto the ground or away from his wife.

      6
          Andrade v. United States, 106 A.3d 386, 389 (D.C. 2015) (that the
complainant “was crying and appeared obviously upset” provided “some support
for a finding of ongoing emergency”); Frye v. United States, 86 A.3d 568, 573
(D.C. 2014) (stating that the declarant’s “acute emotional distress” supported a
finding that her statement was nontestimonial).
                                         9

Particularly after the complainant was standing with Sergeant Parson away from

Mr. Wills and immediately assured the officer that she was okay, the officer had no

grounds apparent from the record for thinking the complainant was still in danger.

By the time Sergeant Parson was questioning the complainant about how Mr. Wills

had come into possession of her keys, another officer was with Mr. Wills. See

Hammon, 547 U.S. at 831 (distinguishing testimonial statements in Hammon from

nontestimonial statements in Davis, which were taken when the complainant was

“unprotected by police” and thus “apparently in immediate danger from Davis”).


      Sergeant Parson’s first question to the complainant—was she okay?—was

the sort that in some circumstances might be directed at a possible emergency.

Andrade v. United States, 106 A.3d 386, 390 (D.C. 2015) (noting that questions

“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?’” are “questions specifically directed at possible emergencies”). Yet any

prospect that Sergeant Parson would need to act to protect the complainant or seek

medical treatment on her behalf faded when she said—and he saw—she was okay.

The officer’s next question—how did the man get the keys?—seems a

straightforward investigative inquiry, a “natural way[] for an investigating officer

to try to ‘establish or prove past events potentially relevant to later criminal

prosecution.’” Id. (quoting Davis, 547 U.S. at 822).
                                       10

      The government contends that Sergeant Parson’s question about how Mr.

Wills got his wife’s keys evinced an attempt to assess “whether or not appellant

was lawfully in possession of the keys or whether appellant had some sort of

weapon that he used to take possession of the keys—rather than preparation for a

future criminal prosecution.” Setting aside that Sergeant Parson never described

the purpose of his questioning that way,7 this observation actually bolsters Mr.

Wills’s position given the absence of any reason to think Mr. Wills was armed.

See Andrade, 106 A.3d at 389 (rejecting the government’s unsubstantiated

argument that the officer did not know “whether weapons had been involved” and

thus “needed to get an account from [the complainant] in order to determine

whether there was an emergency”); Bryant, 562 U.S. at 364 (noting the importance

of evidence regarding the presence of a weapon and the type of weapon to the

question whether there was an ongoing emergency). Similarly, the government’s

portrayal of Sergeant Parson as trying to determine whether Mr. Wills was in

lawful possession of the keys suggests the officer’s interest in investigating

criminal conduct that had already occurred, lending further support to the


      7
          Cf. Andrade, 106 A.3d at 390–91 (assuming without deciding that the
officer’s stated reasons for questioning the complainant were irrelevant while
noting that “the Supreme Court in Davis appeared to treat as relevant an officer’s
testimony about the purpose of police questioning”).
                                         11

conclusion that “the primary, if not indeed the sole, purpose of the interrogation

was to investigate a possible crime.” Hammon, 547 U.S. at 830.


      Considering the complainant’s actions and statements and the situation from

her perspective, her matter-of-fact answers to the officer’s questions—that yes she

was okay, that Sergeant Parson “need[ed] to get [her] phone” and “need[ed] to get

[her] keys,” and that Mr. Wills had snatched her keys—do not suggest an

emergency was under way. On the contrary, the complainant’s statement that Mr.

Wills had taken her property was a straightforward reporting of a past event that

police had a duty to investigate. See Hammon, 547 U.S. at 830 (“[I]nvestigat[ing]

a possible crime . . . is, of course, precisely what the officer should have done.”).

The government argues that the fact that the complainant said nothing to the police

about the assault against her shows that she was “merely attempting to gain the

police’s assistance to leave a volatile situation,” not “attempting to make a record

for a future trial.” The more objective (and less speculative) relevance of that

omission to the Confrontation Clause analysis, however, is that it tends to show

that the complainant was not specifically seeking physical protection or medical

assistance when she was responding to the officer’s questions. See Andrade, 106

A.3d at 391 (“[The complainant] 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, [she] simply described
                                          12

the circumstances of the earlier incident.” (citations omitted)). As Sergeant Parson

pointed out, another officer promptly conducted “a more thorough interview”—an

interview that was not introduced at trial and that the government in its brief

concedes “potentially would have been closer to the ‘testimonial’ line.” The

government is not contending, therefore, that Mr. Wills’s wife never mentioned the

assault to police on the scene, only that she did not mention it at the outset to

Sergeant Parson. Moreover, the government’s acknowledgement that the second

officer’s interview may have produced testimonial statements is telling given that it

was conducted in the immediate wake of the statement at issue in this appeal and

inevitably shared most if not all of the hallmarks of the initial questioning.


      The circumstances of this case most relevant to the Confrontation Clause

analysis replicate those in the Supreme Court’s decision in Hammon. In Hammon,

when police arrived at the home of Hershel and Amy Hammon after a report of a

“domestic disturbance,” they found Amy on the front porch—appearing

“somewhat frightened” but telling police that “nothing was the matter”—and

Hershel in the kitchen. 547 U.S. at 819. They also saw, in the corner of the living

room, a gas heating unit with pieces of glass on the floor in front of it and flames

coming out of the front of the unit. Id. Hershel told police that he and Amy had

been in an argument but that “everything was fine now” and that it “never became

physical.” Id. When another officer went to the living room to talk to Amy,
                                          13

Hershel “made several attempts to participate in Amy’s conversation with the

police” and “became angry” when police kept them separated. Id. at 819–20.

Amy told the officer what had happened, then penned a handwritten affidavit

indicating that Hershel had broken the furnace and shoved her down into the

broken glass. Id. at 820. Amy did not appear at Hershel’s trial on domestic battery

charges, but he was convicted after the government presented the officer’s

testimony about what Amy told him had happened and Amy’s affidavit to the

judge presiding at the bench trial. Id. at 820–21.


      The Supreme Court held that it was “entirely clear” from these

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

criminal past conduct.”     Id. at 829.    In reaching that conclusion, the Court

emphasized several circumstances that are also present here:       though Hershel

Hammon was present, there was “no emergency in progress,” there was “no

immediate threat to [the complainant’s] person,” and the complainant told police

she was all right. Id. at 829–30. The officer’s questions—like Sergeant Parson’s

question here about how Mr. Wills got the keys—sought to determine “what

happened” rather than “what is happening.” Id. at 830. Here, as in Hammon, the

complainant’s statement “took place some time after the events described were

over” and “deliberately recounted, in response to police questioning, how

potentially criminal past events began and progressed.” Id. “Such statements
                                        14

under official interrogation are an obvious substitute for live testimony, because

they do precisely what a witness does on direct examination; they are inherently

testimonial.” Id. (emphasis omitted).


      The government contends that Hammon is distinguishable because the police

there saw no emergency in progress or immediate threat to the complainant. But

we have already concluded the same is true here. Noting that Amy Hammon had

assured police that everything was fine, id. at 819, the government also suggests

that Amy’s statements were more deliberate and that more time passed before she

uttered them. The cases are factually more alike than the government allows,

however.    Mr. Wills’s wife also told police that she was okay.           And the

interrogation in both cases took place on the scene not long after the offense each

complainant was describing.      When the Supreme Court noted that “Amy’s

narrative of past events was delivered at some remove in time from the danger she

described,” its focus was more on the fact that the incident was over than that it

was long over. Id. at 832; see id. at 830 (noting that Amy Hammon’s statement

“took place some time after the events described were over”); see also, e.g., id. at

829 (noting that when police arrived, they “heard no arguments or crashing and

saw no one throw or break anything”). Several factual differences only paint the

situation in Hammon as more potentially volatile than that here.         Unlike in

Hammon, for example, where Hershel Hammon was angry and trying to interfere
                                          15

with the officer’s questioning of his wife, the record here is devoid of evidence that

Mr. Wills was disruptive or dangerous. And Amy Hammon’s statements that

“nothing was the matter” and that “things were fine” were less than reassuring

when there were flames coming out of the broken heating unit and pieces of glass

strewn about the living room floor. Id. at 819, 830.


        And finally, the statements that the Supreme Court found to be testimonial in

Hammon were not more deliberate than the statement at issue here. As an initial

matter, informal statements in response to police questioning can be testimonial

“whether reduced to a writing signed by the declarant or embedded in the memory

(and perhaps notes) of the interrogating officer,” id. at 826, and the Court held in

Hammon that Amy Hammon’s initial oral statements, not just her subsequent

written affidavit, were admitted in violation of the Confrontation Clause. Id. at

830–32. The Court also emphasized that Amy’s statements were testimonial even

though her questioning was far less formal than the tape-recorded stationhouse

interrogation at issue in Crawford. See id. at 830 (citing Crawford, 541 U.S. at 53

n.4).


        “Whether formal or informal, out-of-court statements can evade the basic

objective of the Confrontation Clause, which is to prevent the accused from being

deprived of the opportunity to cross-examine the declarant about statements taken
                                        16

for use at trial.” Bryant, 562 U.S. at 358. In our recent decision in Andrade v.

United States, that constitutional objective was evaded where the police, having

arrived at the scene less than five minutes after receiving a 911 call about a

domestic assault, promptly asked a crying and still upset complainant what had

happened. 106 A.3d at 387–88. The “relatively informal” nature of the police

questioning in Andrade did not preclude the complainant’s statements in response

to that questioning from being deemed testimonial, id. at 389, 391, 393, and it does

not preclude us from reaching the same conclusion based on the comparable

interrogation of the complainant here. Sergeant Parson’s on-the-scene question

about “how [Mr. Wills] got the keys” may not have been especially formal, but the

complainant’s response, that Mr. Wills “snatched” her keys from her, shares with

Hammon and Andrade the critical characteristic that it deliberately reported—in

response to a police officer’s question—how a “potentially criminal past event[]”

occurred.


      The government contends that this court’s decision in Frye v. United States,

86 A.3d 568 (D.C. 2014), establishes that the complainant’s statement was not, in

fact, testimonial. But as the Supreme Court has made clear, whether a statement is

nontestimonial—that is, made in response to an ongoing emergency—is a “highly
                                        17

context-dependent inquiry,” Bryant, 562 U.S. at 363, and the context in which the

complainant in Frye made her statements differs markedly from that in this case.8

After receiving a call from a child about an assault involving the child’s parents,

the police in Frye arrived at the house to find five children downstairs and a man

and a woman a foot apart at the top of the stairs shouting at each other as the

woman backed away nervously and the man paced back and forth with his fist

clenched up. 86 A.3d at 569. Though the police separated the pair, they were still

close to each other when an officer asked the complainant what happened. The

complainant was shaking and crying when she responded, had visible abrasions on

her arms and neck, and appeared to need medical treatment. Id. at 570. Nearby,

the man had his fists balled up and was speaking loudly to another officer. Id. The

officer who spoke to the woman testified that at the time he had no information

about how many people were involved in the assault, who the perpetrator was, or

      8
         Bryant states that “there may be other circumstances, aside from ongoing
emergencies, when a statement is not procured with a primary purpose of creating
an out-of-court substitute for trial testimony.” 562 U.S. at 358. The government
focuses on the ongoing-emergency ground, however, and we are unaware of any
other ground on which the statements in this case could have been nontestimonial.
See, e.g., United States v. Polidore, 690 F.3d 705, 718 (5th Cir. 2012) (statements
nontestimonial when made to “request police assistance in stopping an ongoing
[drug trafficking] crime” even though no “ongoing emergency”); cf. Frye, 86 A.3d
at 571 (noting that “the existence of [an ongoing] emergency ‘is among the most
important circumstances’ to be considered in making that determination’”)
(quoting Bryant, 562 U.S. at 361, 370).
                                           18

whether any weapons were involved. Id.


      Most of the facts the court in Frye deemed critical to its determination that

the complainant’s statements to police were not testimonial are not present here—

specifically, that the officers arrived to find a “heated dispute” still in progress, that

the situation was “fluid and somewhat confused,” id. at 571–72 (quoting Bryant,

562 U.S. at 377), that there were five children in the house who were possibly in

danger or in need of “assistance from a social services agency,” and that the

complainant had visible injuries that required medical treatment, id. at 572–73.

Although the court in Frye also relied upon the complainant’s distraught condition,

Frye, 86 A.3d at 572; see also Davis, 547 U.S. at 818, and here, Mr. Wills’s wife

was likewise crying and upset, the complainant’s demeanor took on more

significance in Frye where a still active quarrel required officers to “clarify what

exigencies . . . existed requiring immediate action,” and where officers had not

“completely subdued” the suspect even by the time they led him out of the house,

86 A.3d at 572–73 (noting that the man “kicked luggage and other items on the

way out”). In cases lacking such confusion, evidence that a complainant was

distressed has not defeated a Confrontation Clause claim.              In Andrade, for

example, the complainant’s visible distress was insufficient to render her

statements nontestimonial when “a number of considerations point[ed] in the

opposite direction.” 106 A.3d at 389. Here, as in Andrade, “[t]he conclusion that
                                          19

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

emergency thus does not support the same conclusion in the present case.” Id. at

393; see also Hammon, 547 U.S. at 819, 832 (holding that the “somewhat

frightened” complainant’s on-the-scene statements were testimonial).


      Considering the totality of the circumstances in this case, we are persuaded

that Sergeant Parson did not ask his question about “how [Mr. Wills] got the keys”

for the primary purpose of enabling police to deal with an ongoing emergency, and

Mr. Wills has therefore satisfied the first prong of the plain error test by

demonstrating that the complainant’s statement in response to that question was

testimonial for purposes of the Confrontation Clause.


         B. Plainness


      We next address whether this error was plain. An error is plain when it is

“clear or obvious, rather than subject to reasonable dispute” under current law. In

re Taylor, 73 A.3d 85, 99 (D.C. 2013) (quoting Puckett v. United States, 556 U.S.

129, 135 (2009)). We assess plainness in light of the state of the law at the time of

appellate review, not the state of the law at the time of trial. Muir v. District of

Columbia, 129 A.3d 265, 267 (D.C. 2016); Taylor, 73 A.3d at 99; see also

Henderson v. United States, 133 S. Ct. 1121, 1129–30 (2013) (“[P]lain-error

review is not a grading system for trial judges.”).
                                        20

      The government makes no separate and specific argument in its brief about

the plainness of the error, but there is no reasonable dispute that the Supreme

Court’s case law—most notably Hammon—compels the conclusion that the

statement at issue here was testimonial. Where no emergency was in progress

when the police arrived, the complainant was distraught but told police she was

okay and showed no signs of injury, the suspect was not armed and was separated

from the complainant when she made the statement, and the complainant’s

statement in response to police questioning described a past incident, it is “clear

and obvious” that the oral statement the complainant made to the police about Mr.

Wills “snatch[ing]” her keys was testimonial.


      No subsequent cases in the Supreme Court or this court have complicated or

cast doubt upon the Hammon Court’s conclusion that the testimonial nature of

statements provided in circumstances closely akin to those here is clear-cut.

Though the government relies more on our decision in Frye than on the Supreme

Court’s fairly recent decision in Michigan v. Bryant, it is important to note, in

assessing plainness, that nothing in the Supreme Court’s decision in Bryant—

which rejected Mr. Bryant’s claim that the statements of a dying victim of a

gunshot wound to a responding police officer were testimonial—purported to

change or narrow the Court’s holding in Hammon. The Court instead took pains to

distinguish Hammon on the grounds that the case involved “a neutralized threat,”
                                         21

“a known and identified perpetrator” who was unarmed and had not caused serious

injury, and a domestic-violence situation, which often meant “a narrower zone of

potential victims than cases involving threats to public safety.” 562 U.S. at 363–

64. In each respect, the same is true here.


      Our own precedent reinforces Hammon’s continued bearing on domestic

abuse cases where the police had separated the unarmed suspect from the

complainant, there was no sign of injury, and the complainant responded to

informal on-the-scene police questioning by describing aspects of an incident that

had just occurred. Andrade, this court’s most recent case addressing a Crawford

ongoing-emergency question, confirmed the view that Bryant did not change the

constitutional landscape in domestic abuse cases such as Andrade and the present

case. Andrade, 106 A.3d at 392 (noting that Bryant “distinguished its earlier

holding in Hammon” by “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”) (citing Bryant, 562 U.S. at 364). And Andrade’s

distinguishing of Frye, this court’s other recent ongoing-emergency decision,

makes clear that Frye did not signal a more expansive view of what constitutes an

ongoing emergency after Bryant, and that its holding stemmed instead from its

unique and “very different circumstances.” Id. at 392–93. And while Andrade

involved a suspect who had left the scene, Andrade’s own holding that a
                                         22

complainant’s statements to police were testimonial under circumstances that were

otherwise very similar to this case independently supports Mr. Wills’s argument

that the error here was plain.9 Factually similar cases in other jurisdictions further

bolster that contention. See, e.g., State v. Lucas, 965 A.2d 75, 85–86 (Md. 2009)

(holding that a domestic-violence complainant’s responses to questions about

“what happened” and “where she got the marks” were testimonial where the

complainant was crying and upset and had red marks on her neck, but where the

complainant was separated from the defendant during the questioning); Zapata v.

State, 232 S.W.3d 254, 256–57, 260 (Tex. App. 2007) (same where the

complainant was “crying and shaking” during questioning and had scratches on her

neck and a large bruise on her arm, but where the complainant was separated from

the defendant during questioning); Commonwealth v. Galicia, 857 N.E.2d 463,

467, 470 (Mass. 2006) (same where officers arrived to find the door to the

complainant’s apartment open, several chairs turned over, and the complainant

visibly upset, with scratches on her face, but where the complainant was separated

      9
         Andrade also provides an example of a case in which this court found a
domestic-abuse complainant’s statements to be testimonial in circumstances where
the officer’s questioning was unstructured and informal. This lends clear and very
recent support to our conclusion that the fact that the complainant in Hammon
formalized her initial oral statements in an affidavit carries little weight in this
case, particularly as the oral statements’ admission into evidence against Hershel
Hammon independently violated the Confrontation Clause. 547 U.S. at 830–32.
                                          23

from the defendant during questioning).


      That the ongoing-emergency inquiry is “highly context-dependent” does not

preclude a determination that the Confrontation Clause error here is beyond

reasonable dispute, as “the ‘plainness’ of the error can depend on well-settled legal

principles as much as well-settled legal precedents.” Conley v. United States, 79

A.3d 270, 290 (D.C. 2013); see also Arthur v. United States, 986 A.2d 398, 412

(D.C. 2009) (“[T]rial judges are presumed to know and apply the legal principles

enunciated in appellate decisions, and not simply to match factual scenarios, as few

cases present the same facts.”); cf. Wiggins v. Smith, 539 U.S. 510, 520 (2003)

(explaining, in the federal habeas corpus context, that a court’s “misappli[cation]

[of] a ‘governing legal principle’” can be grounds for a finding that the court

unreasonably applied clearly established law, even where the case involves “a set

of facts different from those of the case in which the principle was announced”)

(quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)). In this case, the principles

and the precedents align. If it was “entirely clear” to the Hammon Court that Amy

Hammon’s statements were testimonial, Hammon, 547 U.S. at 829, it is also clear

that the statement at issue here was testimonial. Cf. id. (calling it a “much easier

task” to evaluate the testimonial character of Amy Hammon’s statements “since

they were not much different from the statements [the Court] found to be

testimonial in Crawford”).
                                         24

           C. Substantial Rights


       To establish that this error affected Mr. Wills’s substantial rights, Mr. Wills

must show “a reasonable probability that the Confrontation Clause violation had a

prejudicial effect on the outcome of his trial.” Thomas v. United States, 914 A.2d

1, 21–22 (D.C. 2006) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81–

82 (2004)). Here, the complainant’s statement “was the main, if indeed not the

only, proof offered by the prosecution,” id. at 22, to establish that Mr. Wills took

the property of another with intent to deprive the other of the property, see D.C.

Code § 22-3211 (b) (2012 Repl.). In finding that “the Government has proved

beyond a reasonable doubt that [Mr. Wills] attempted to deprive [the complainant]

permanently of the keys,” the trial court relied only on Sergeant Parson’s testimony

“that as the woman came towards him, she looked back over her shoulder at the

man and said, ‘You need to get my keys, he took my keys’” 10 and on evidence that

“the keys were later recovered by a different officer from somewhere on or near

the defendant.”



      10
          “[H]e took my keys”—a paraphrase of the complainant’s statement “[h]e
snatched them from me”—constitutes direct evidence that Mr. Wills had
wrongfully obtained the keys from the complainant. The complainant’s other
statements about her keys indicated only that Mr. Wills had them in his possession
and that the complainant wanted the police to retrieve them.
                                         25

      The trial evidence included two other references to the complainant’s keys

not mentioned by the judge in her verdict.        The anonymous 911 caller who

witnessed the incident stated that the perpetrator threw a set of car keys “over onto

the highway,” and on cross-examination Ndya Silas disagreed with defense

counsel’s statement that she “didn’t see keys get taken.”11 Such evidence is far

from compelling. Assuming the person the anonymous caller mentioned was Mr.

Wills, his statement does not say whose keys they were, how Mr. Wills came to

possess them, or to what extent the keys’ owner (if not Mr. Wills) was actually

deprived of possession when keys landed in the street.         Nor did Ms. Silas’s

testimony add much to this picture, as she did not suggest who took the keys from

whom or how they were taken, and she admitted she did not know whose keys they

were. Given the government’s otherwise thin case on theft, we cannot conclude

that the erroneous admission of the complainant’s statement about Mr. Wills


      11
         The prosecutor elicited no testimony about keys from Ms. Silas on direct
examination. On cross-examination the colloquy went as follows:
      Q: You didn’t see a phone get thrown, did you?
      A: No.
      Q: You didn’t see keys get taken, did you?
      A: Yes.
      Q: You don’t know whose keys they were?
      A: No.
                                          26

“snatch[ing]” her keys was harmless. In re Ty.B., 878 A.2d 1255, 1266 & n.18

(D.C. 2005) (citing Fox v. United States, 421 A.2d 9, 14 (D.C. 1980)). There is at

least “a reasonable probability that the Confrontation Clause violation had a

prejudicial effect on the outcome” of Mr. Wills’s trial on the attempted theft

charge, Otts v. United States, 952 A.2d 156, 161 (D.C. 2008), and therefore Mr.

Wills’s substantial rights were affected by the constitutional error. 12




      12
           We nevertheless reject Mr. Wills’s challenge to the sufficiency of the
evidence underlying the attempted theft conviction. When it includes the
complainant’s improperly admitted statement, the government’s proof of attempted
theft was constitutionally sufficient. See Thomas v. United States, 557 A.2d 599,
601 (D.C. 1989) (en banc) (citing Lockhart v. Nelson, 488 U.S. 33, 40–42 (1988))
(holding that a reviewing court addressing a challenge to the denial of a motion for
judgment of acquittal considers the same erroneously admitted evidence that was
considered by the trial court). Though admitted into evidence in violation of the
Confrontation Clause, the evidence that the complainant told Sergeant Parson that
Mr. Wills had “snatched” her keys, combined with the evidence that the
complainant sought assistance in retrieving them, is sufficient to establish that Mr.
Wills tried to wrongfully obtain another person’s property of some value with the
intent to deprive her of the right to or benefit of that property. See D.C. Code
§§ 22-1803, -3211 (b)(1)–(2), -3212 (b) (2012 Repl.). Mr. Wills argues that the car
and the keys were marital property, jointly owned by Mr. Wills and the
complainant. But other than Sergeant Parson’s testimony that “the complainant . . .
identified Mr. [Wills] as her husband,” there is no evidence in the record to support
this argument. And according to Sergeant Parson’s testimony, the complainant
described the keys as “my keys” (emphasis added). Mr. Wills also argues that
there is no evidence in the record that the keys had value. But a reasonable
factfinder could infer that the keys had at least some value in light of their capacity
to unlock and start the yellow Mustang. See Jeffcoat v. United States, 551 A.2d
1301, 1303 (D.C. 1988) (“[T]he value of an item is to be determined by its ‘useful
                                                                        (continued…)
                                        27

      With respect to Mr. Wills’s conviction for assault, we conclude that the

erroneous admission of the testimonial statement did not affect Mr. Wills’s

substantial rights. This is so even if we assume that the complainant’s other

statements, see supra note 5, were also testimonial and thus improperly admitted.

The complainant’s statements, as recounted by the officer, did not provide any

evidence of an assault; the assault conviction was based on Ms. Silas’s testimony

and the anonymous 911 call. Mr. Wills argues that his wife’s statement that he

took her keys was the only evidence linking him to Ms. Silas’s testimony, as Ms.

Silas did not identify him as the perpetrator of the assault she witnessed. But the

timing of Ms. Silas’s 911 call, the officers’ arrival at the scene, and Ms. Silas’s

departure from the scene is strong evidence that Mr. Wills and his wife were the

two individuals involved in the incident Ms. Silas witnessed. The similarities

between the descriptions given by Ms. Silas and the anonymous 911 caller also

support a reasonable inference that Mr. Wills and his wife were the individuals

involved in the assault witnessed by the anonymous caller. We conclude that as to

the assault conviction, Mr. Wills has failed to satisfy the third prong of the plain

error test. For the same reasons, we reject Mr. Wills’s challenge to the sufficiency


(…continued)
functional purpose.’” (quoting Jenkins v. United States, 374 A.2d 581, 586 n.9
(D.C. 1977))).
                                          28

of the evidence underlying his assault conviction.


        D. The Fairness, Integrity, or Public Reputation of the Trial


      If the first three parts of the plain error test are satisfied, we “exercise [our]

discretion to correct the error” when the error “seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Thomas, 914 A.2d at 22

(quoting Johnson v. United States, 520 U.S. 461, 470 (1997)). The government

makes no fourth-prong argument in its brief.


      In Thomas v. United States and Otts v. United States, this court held that a

Confrontation Clause violation did not satisfy the fourth prong of the plain-error

test when the trial court erroneously admitted a DEA chemist’s report that a

particular substance was cocaine and there was “no reason whatsoever to believe

that the chemist’s report was unreliable.” Thomas, 914 A.2d at 22–24; Otts, 952

A.2d at 162–63. In contrast, this court has held that when a trial court bases its

verdict entirely on officers’ testimony regarding a complainant’s out-of-court

statements, a Confrontation Clause violation “would seriously affect the fairness

and integrity of the proceedings.” Drayton v. United States, 877 A.2d 145, 148–49

(D.C. 2005).


      Although this is a case-by-case inquiry, Thomas, 914 A.2d at 23, the
                                          29

principle in Drayton informs our analysis here. This is not a case like Thomas, in

which the evidence of guilt was “essentially uncontroverted” and “overwhelming.”

914 A.2d at 22 (quoting Johnson v. United States, 520 U.S. 461, 470 (1997)).

Without the complainant’s testimonial statement, the evidence of attempted theft

was meager, if not legally insufficient, and to allow a conviction to stand in such

circumstances “would seriously call into question the fairness and integrity of these

proceedings.” United States v. Bruno, 383 F.3d 65, 80–81 (2d Cir. 2004); United

States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004). The unfairness of leaving the

Confrontation Clause violation without a remedy is more pronounced still where

the government’s proof that Mr. Wills committed the offense of attempted theft

consisted almost entirely of unconfronted out-of-court statements—namely, the

complainant’s statements to Sergeant Parson and the anonymous 911 caller’s

reference to Mr. Wills throwing car keys.13 “The perception that confrontation is

essential to fairness has persisted over the centuries because there is much truth to

it,” and “the right to face-to-face confrontation . . . ‘ensur[es] the integrity of the

fact-finding process.’” Coy v. Iowa, 487 U.S. 1012, 1019–20 (1988) (quoting

Kentucky v. Stincer, 482 U.S. 730, 736 (1987)). We conclude that the erroneous


      13
          Trial counsel unsuccessfully challenged the 911 call on Confrontation
Clause grounds but Mr. Wills has not presented that claim on appeal.
                                         30

admission of Mr. Wills’s wife’s statement seriously affected the fairness, integrity,

and public reputation of the proceedings in this case.


                                        III.


      Having determined that Mr. Wills has satisfied the requirements for plain

error, we reverse his conviction for attempted theft and remand to the Superior

Court for further proceedings.14 Mr. Wills’s assault conviction is affirmed.


                                                          So ordered.15




      14
           At least as to the theft conviction, therefore, we need not consider Mr.
Wills’s alternative argument—not raised at trial—that the trial court erred by
failing to make a missing witness inference adverse to the government. As to the
assault conviction, Mr. Wills cannot establish that any error in this regard would
have affected his substantial rights where an adverse inference would not have
undermined the main evidence of assault, which came from two neutral 911 callers
who gave similar descriptions of the incident, not from any of the complainant’s
own statements. See Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006).
      15
          The government notes in its brief that certain docket entries and the
judgment and commitment order in this case indicate that Mr. Wills was convicted
of destruction of property rather than attempted theft. This clerical error should be
corrected on remand.
