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State v. McKiver

Supreme Court of North Carolina

June 9, 2017

STATE OF NORTH CAROLINA
v.
CHRISTOPHER ALLEN MCKIVER

          Heard in the Supreme Court on 11 April 2017.

         On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 786 S.E.2d 85 (2016), finding prejudicial error in a judgment entered on 29 April 2015 by Judge Benjamin G. Alford in Superior Court, New Hanover County, and awarding defendant a new trial.

          Joshua H. Stein, Attorney General, by Daniel P. O'Brien, Special Deputy Attorney General, for the State-appellant.

          Kimberly P. Hoppin for defendant-appellee.

          NEWBY, Justice.

         This case is about whether the Confrontation Clause prohibits the use at trial of information received from an anonymous 911 caller who informed law enforcement of a possible incident involving a firearm and described the suspect. Because the circumstances surrounding the 911 caller's statements objectively indicate that their primary purpose was to enable law enforcement to meet an ongoing emergency, the statements were nontestimonial in nature, thus not implicating the Confrontation Clause. Accordingly, we reverse the decision of the Court of Appeals and reinstate the trial court's evidentiary ruling and the resulting judgment upon defendant's conviction.

         At 9:37 p.m. on 12 April 2014, an anonymous 911 caller reported a possible dispute involving a black man with a gun in his hand who was standing outside on Penn Street in the Long Leaf Park subdivision of Wilmington, North Carolina. In response to the dispatch, Officer Scott Bramley of the Wilmington Police Department activated his patrol car's blue lights and siren on the way to the scene. Officer Bramley characterized the dispatch as "a pretty serious call" that is "always dispatched with backup." After stopping a few blocks away to retrieve his patrol rifle from his vehicle's trunk, he proceeded to Penn Street, where he parked on the side of the roadway. Penn Street was "very dark" with "very sporadic" street lighting, and Officer Bramley turned on his high-beam headlights "to try and light-up the area."

         Upon exiting his vehicle, Officer Bramley noticed two people standing near a black, unoccupied Mercedes, which was still running and parked beside a vacant lot. Officer Bramley heard music "blaring" from the car radio. Lacking a detailed description of the suspect, Officer Bramley approached the two individuals. One of the individuals, a black male wearing a red and white plaid shirt and jeans, walked towards Officer Bramley. Officer Bramley "confronted him about possibly having [a firearm], at which point he lifted his shirt to show [Officer Bramley] he did not have a gun." Officer Bramley conducted a pat-down to confirm the man was unarmed and then, having no description or location for the suspect, continued to investigate down the block.

         By this time other officers had arrived on the scene, and Officer Bramley observed a number of onlookers watching from nearby residences and the vacant lot. Officer Bramley asked for a more detailed description of the suspect, but the dispatcher informed him that the anonymous 911 caller had already disconnected. Officer Bramley requested that the dispatcher initiate a reverse call. After reconnecting with the caller, the dispatcher informed Officer Bramley that the caller "said it was in the field in a black car and someone said he might have thrown the gun."

         In response to Officer Bramley's request for a more detailed description from the caller, the dispatcher replied: "Black Male light plaid shirt. He was last seen by the car with a gun in his hand and then they all went in the house because they were afraid." Officer Bramley testified that, upon receiving this information, he "immediately knew [the suspect] was the first gentleman that [he] had come into contact with because no one else in that area was wearing anything remotely similar to that clothing description." Officer Bramley relayed the suspect's description "to other officers still en route to help search the area in an attempt to locate him." Officers searched the nearby vacant lot and discovered a Sig Sauer P320 .45 caliber handgun located about ten feet away from the Mercedes. The officers identified defendant as the suspect based on the caller's description, and defendant was arrested.

         Defendant was indicted, inter alia, on one count of possession of a firearm by a felon. Before trial defendant moved to exclude evidence of the initial 911 call and the dispatcher's reverse call, contending that admitting statements made during either call without requiring the anonymous caller to testify would allow the jury to hear inadmissible testimonial statements in violation of his Sixth Amendment right to confront the witnesses against him. The State successfully argued, however, that the statements primarily served to enable law enforcement to meet an ongoing emergency and were therefore nontestimonial in nature. See Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Along with the calls, the State introduced other evidence from the scene, including the firearm, and documentation verifying defendant's prior felony conviction. The jury convicted defendant of possessing a firearm as a convicted felon, and the trial court sentenced defendant to fourteen to twenty-six months of imprisonment, suspended for thirty-six months of supervised probation after completion of a six-month term. Defendant appealed.

         On appeal the Court of Appeals concluded, inter alia, that the anonymous 911 call and the dispatcher's reverse call were inadmissible testimonial statements. State v. McKiver, __ N.C.App. __, ___, 786 S.E.2d 85, 94 (2016). According to the Court of Appeals, the 911 call was not placed in response to an "ongoing emergency" and admitting the statements without requiring the anonymous caller to testify violated defendant's constitutional right to confront the witnesses against him.[1] Id. at___, 786 S.E.2d at 93-94 (citing Davis, 547 U.S. at 828, 126 S.Ct. at 2277, 165 L.Ed.2d at 240-41). Noting the anonymous 911 caller's "position of relative safety" in her home and away from her window, the Court of Appeals determined that the record did not objectively indicate that an ongoing emergency existed. Id. at___, 786 S.E.2d at 93. Even though "the identity and location of the man with the gun were not yet known to the officers, " according to the Court of Appeals, " 'this fact [alone] does not in and of itself create an ongoing emergency.' " Id. at___, 786 S.E.2d at 93 (quoting State v. Lewis, 361 N.C. 541, 549, 648 S.E.2d 824, 829 (2007)). Moreover, the court concluded that receiving evidence of the calls could not be harmless because defendant's identification as the suspect rested almost entirely on these statements. Id. at___, 786 S.E.2d at 94. While it emphasized that its conclusion should not be read to condemn the officers "who reacted professionally and selflessly to a potentially dangerous situation, " the Court of Appeals ultimately held that the trial court erred by failing to exclude evidence concerning both the initial 911 call and the dispatcher's reverse call from evidence, and awarded defendant a new trial. Id. at___, 786 S.E.2d at 94. This Court allowed discretionary review.

          We review a trial court's decisions regarding a defendant's allegations of constitutional violations de novo. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). The Confrontation Clause of the Sixth Amendment to the Federal Constitution declares: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const. amend VI. The Confrontation Clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177, 194 (2004). The Confrontation Clause does not, however, apply to nontestimonial statements. Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1, 13 (2007).

         In Davis v. Washington the United States Supreme Court defined "nontestimonial statements" and compared them to ...


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